Mid-States Metal Products, Inc.

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nization as a condition of employment, as authorized in Section 8(a)(3) of the- Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959 All of our employees are free to become, remain, or refrain from becoming or remaining members of the above-named labor organization or any other labor organization. GATEWAY CHEVROLET SALES, INC., 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 881 U S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi- nois, Telephone No. 828-7572. Mid-States Metal Products , Inc. and Willard Ray Dobbins Local 738, International Chemical Workers Union, AFL-C10 [Mid-States Metal Products, Inc.] and Willard Ray Dobbins.- Cases Nos. 06-CA-1903 and 26-CB-260. January 17, 1966 DECISION AND ORDER On July 7, 1965, Trial Examiner Rosanna A. Blake issued her Decision in the above-entitled proceeding, finding that the above- named Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Union filed exceptions and a supporting brief; the Respondent Employer filed exceptions; and the General Counsel filed cross- exceptions with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagori a] . 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 exceptions, cross-exceptions, briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations. i The Trial Examiner found, as to the Respondent Employer, that its promulgation in a collective-bargaining agreement of, and its enforcement of, a rule, which prohibited solicitation for or against any labor organization on company premises during nonwork- 156 NLRB No. 90. MID-STATES METAL PRODUCTS, INC. 873 [The Board adopted the Trial Examiner's Recommended Order, with the following modifications : [1. -Substitute the following for paragraph A, 1, (a) ["(a) Maintaining, giving effect to, or enforcing any collective- bargaining agreement provision which prohibits any employee (1) from soliciting in behalf of any labor organization other than the con- tracting labor organization, or from soliciting against any labor` organization, where in either case the activity occurs on company premises on nonworking time; or (2) from distributing literature in behalf of any labor organization other than the contracting labor organization, or distributing literature against any labor organization, where, in either case, the activity occurs in nonworking areas on non- working time." [2. Delete the second sentence of paragraph B, 2, (a) . [3. Delete Appendixes A and B from the Recommended Order and substitute attached Appendixes A and B. [4. Wherever the Recommended Order speaks of Appendix A or Appendix B, it will be deemed to speak of attached Appendix A or Appendix B, respectively.] time and also prohibited distribution of literature for or against any labor organization in nonwork areas on nonworking time, unqualifiedly violated Section 8 (a) (1) Both Respondents excepted to these findings We find merit in pact to these exceptions In- asmuch as these rules were set forth in the Employer's collective-bargaining agreement with the Respondent Union, their promulgation and enforcement were lawful to the ex- tent that such rules applied to, or were intended to apply to, activity on behalf of Re- spondent Union. However, promulgation and enforcement of these rules violated Section 8(a) (1) to the extent that they applied to, or were intended to apply to, solicitation during nonworking time in opposition to Respondent Union, or in favor of, or in opposition to, any other labor organization, and to distribution in nonwoik areas in opposition to Respondent Union, or in opposition to, of in favor of, any other laboi organization. Armco Steel Corporation, 148 NLRB 1179, enforcement denied 344 F 2d 621 (CA 6) , Cale Products, Div. of Outboard Marine Corp , 142 NLRB 1246, enforcement denied 337 F. 2d 390 (C.A. 7). With due respect for the courts of appeal in these cases, the Board adheres to its view as expressed in those decis.onc APPENDIX A NOTICE To 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 , we hereby notify our employees that : WE WILL NOT encourage membership in Local 738, International Chemical Workers Union , AFL-CIO, by discharging, refusing to reinstate, or in any other manner discriminating against any 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee with regard to hire or tenure or employment or any term or condition of employment. WE WILL NOT maintain or enforce (1) a collective-bargaining agreement provision which prohibits any of our employees from soliciting in behalf of any labor organization other than the con- tracting labor organization, or from soliciting against any labor organization, where, in either case, the activity occurs on company property on nonworktime; or (2) a collective-bargaining agree- ment provision which prohibits any of our employees from dis- tributing literature on behalf of any labor organization other than the contracting labor organization, or from distributing literature against any labor organization where, in either case, the activity occurs in nonwork areas of our property on the employees' own time. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Willard Ray Dobbins immediate and full rein- statement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and jointly and severally with Local 738, International Chemical Workers Union, AFL-CIO, make Dobbins whole for all losses he may have suffered by reason of the discrimination against him. All of our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named Union. MID-STATES METAL PRODUCTS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify Willard Ray Dobbins if presently serving in the Armed Forces of the United States of his right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161. MID-STATES METAL PRODUCTS, INC. 875 APPENDIX B NOTICE To ALL ME3IBEES or LOCAL 738 , INTERNATIONAL CHEnnCAL WOBEERS UNION, AFL-CIO 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 , we hereby notify our employees that: WE WILL NOT cause or attempt to cause Mid-States Metal Products, Inc., to discriminate against Willard Ray Dobbins, or any other employee, in violation of Section 8 (a) (3) of the Act. WE WILL NOT threaten any employee with physical violence or discharge because he engages in activities against our Union. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. • WE WILL notify Willard Ray Dobbins and Mid-States Metal Products, Inc., in writing, that we withdraw our objections to Dobbins' employment and request his reinstatement to his former or a substantially equivalent position. WE WILL jointly and severally with Mid-States Metal Products, Inc., make Willard Ray Dobbins whole for all losses he may have suffered by reason of the discrimination against him. LOCAL 738, INTERNATIONAL CHEMICAL WORKERS UNION , AFL-CIO, Labor Organization. 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee , Telephone No. 534-3161. TRIAL EXAMINER'S DECISION Upon charges filed on August 17, September 23, and October 5, 1964, by Willard Ray Dobbins, an individual, alleging violations of the Act by Mid-States Metal Prod- ucts, Inc., and on a charge filed on September 1, 1964, by the same individual alleg- ing violations of the Act by the Respondent Union, the General Counsel, acting through the Regional Director for Region 26, issued a consolidated complaint on October 6, 1964, alleging that the Respondent Company had engaged in conduct which violated Section 8(a)(1), (2), and (3) of the Act and that the Respondent Union had engaged in conduct which violated Section 8(b)(1)(A ) and (2) of the Act. Each Respondent filed an answer in which it denied having engaged in any con- duct which violated any section of the Act. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, pursuant to due notice , a hearing was held before Trial Examiner Rosanna A. Blake at Greenville , Mississippi, from December 15 through 19, 1964. All parties were represented by counsel and were given full opportunity to present evidence, to examine and cross-examine witnesses , to argue orally, and to file briefs. The parties waived oral argument . Thereafter, a brief was filed by counsel for the General Counsel, by counsel for the Respondent Employer, and by counsel for the Respondent Union. Having considered the record as a whole , the briefs, and upon my observation of the demeanor of the witnesses while testifying , I make the following: 1 FINDINGS OF FACT 1. JURISDICTIONAL FACTS AND CONCLUSIONS ; THE LABOR ORGANIZATION INVOLVED Mid-States Metal Products , Inc., herein called Mid-States or the Company, is a corporation with its principal office and place of business at Greenville , Mississippi, the only location herein involved , where it is engaged in the manufacture of automo- bile parts . During the 12 months prior to the issuance of the complaint , Mid-States, in the conduct of its operations at the Greenville plant, purchased and received at that plant, directly from points outside the State of Mississippi , products and materials valued in excess of $50,000, and during the same period , sold and shipped from the plant to points directly outside the State of Mississippi , finished products valued in excess of $50,000. Upon the foregoing , undisputed facts, I find that Mid-States is and at all times material herein was , an employer engaged in commerce within the meaning of Sec- tion 2 (6) and (7) of the Act. Local 738, International Chemical Workers Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction In the spring of 1963, Detroit Engineering Company purchased the Greenville business formerly known as Carrick Products Company and , about August 1, 1963, began operating it under the name of Mid -States Metal Products, Inc. Carrick and Mid-States are wholly unrelated companies and the change in ownership brought about changes in management . The Carrick president and vice president resigned and within 6 months the plant manager was replaced as were the personnel manager and comptroller . However, most of the foremen were retained. Andrew Kalman is president of Mid-States and, at all times material herein, Reece R. Hoffman was the plant manager and Edgar George Busch was the manufacturing manager and Manager Hoffman 's assistant. At the time of the hearing, there were about 250 employees who worked on 2 shifts. The first shift begins at 7 a.m. and apparently ends at 3:30 p.m. It is not clear when the second shift begins work but it has its supper break between 9 and 9:30 p.m. Bill Smith is the day-shift superintendent and Clarence Woods is the second-shift superintendent. The Union won a Board-conducted election on August 8, 1963 , and was certified by the Board on September 12. Collective bargaining , which began in the late fall of 1963 and continued through February 1964, resulted in a contract , dated April 3, 1964, and effective until August 30, 1966. At all times material herein , Joseph M. Sweeney was president of the Union and Carson "Speck" Bowman was vice president . Arthur Dunn was the Union's finan- cial secretary and John Hoop was its sergeant at arms. The following employees were members of the Union's negotiating committee* Joseph Sweeney , Carson Bow- man, John Lambert, Grace Peden, Deane Lee, and Willard Ray Dobbins. For the reasons set forth infra, I reject the General Counsel's contention that Union President Sweeney is a supervisor within the meaning of Section 2 ( 11) of the Act and that, therefore, his conduct is attributable to the Company as well as to the Union B. The alleged supervisory status of Joseph Sweeney On December 13, 1962 , the Regional Director for Region 26 issued a Decision and Direction of Election in Carrick Products Co., Case No. 26-RC-1857, in which 'All credibility determinations made herein are based in part upon my observation of the demeanor of the witnesses while testifying. MID-STATES METAL PRODUCTS, INC. 877 he found that Joseph Sweeney was a supervisor within the meaning of Section 2(11) .of the Act because he could "effectively recommend layoffs, promotions and dis- charges .. At or about the same time, Carrick posted a notice stating that Sweeney was a supervisor and he was given the additional insurance provided for .management representatives. After Mid-States took over Carrick, it reviewed the duties and responsibilities of all foremen According to Sweeney, who is admittedly designated as a "leadman," he was told by Vice President Louis Denton that he was not a supervisor, that he was an hourly paid employee, and that he was being returned to his former status as "leader." 2 Apparently, after about November 1, 1963, Sweeney no longer received -the additional insurance provided for management representatives. However, the =employees were never notified that Sweeney was no longer a supervisor. Sweeney is the "leader" and senior member of the five-man mechanical mainte- nance crew on the day shift and works along with the men. His supervisor is Plant Engineer Ozzie See. Sweeney does not attend foremen meetings, receives overtime pay, and punches the timeclock. He voted, without objection, in the election con- ducted by the Board on August 8, 1963: i e., the election held after Mid-States took over from Carrick.3 The collective-bargaining contract sets the maximum rate for the maintenance leader at $3.10 per hour and this is the rate paid Sweeney. The max- imum rate for other maintenance classifications is $2.60 per hour. It is undisputed that, under Mid-States, Sweeney does not have the power to hire, fire, transfer [between departments], layoff, recall, promote, discharge, reward, or discipline employees or to recommend effectively such action. However, he is a supervisor within the meaning of Section 2 (11) of the Act if he has the authority to "assign" work or "responsibly direct" the maintenance crew and if in exercising such authority, he uses independent judgment and does not act merely in a routine manner .4 It is undisputed that Sweeney, who is the senior and most skilled maintenance -employee, does not have to consult Plant Engineer See before directing one member ^of the crew to stop what he is doing and help another member of the crew and I do not doubt that he assigns jobs to the members of the day crew, at least, and generally "keeps all hands busy." 5 2 Sweeney testified that the change did not affect his rate of pay. Sweeney's testimony is generally corroborated by Manager Hoffman although Hoffman was not present at the interview between Sweeney and Denton. However, Assistant Manager Busch insisted that there was no change in Sweeney's status. (Busch was general superintendent for Carrick between 1959 and 1962.) When Busch was asked the following questions con- cerning a change in Sweeney's status after Busch returned to the Greenville plant in May 1963, i.e., shortly after Mid-States took over, he gave the following answers: Q. I see. Did you ever tell Mr. Sweeney his function had been changed' A. No, sir. i i • f i t i Q. Did you ever tell any employee that there had been any changes in Mr. Sweeney's function' A. I don't know what you mean by change. Q. That his duties, responsibilities and functions as an employee with Mid-States had been changed? A. No, because it hadn't been changed. Q. There has been no change at anytime' A. (Nodded negatively.) Q. Still is not? A. Not after I returned. 2 President Kalman testified creditably that he explained at the preelection conference that Mid-States had made changes, that Sweeney was an hourly paid employee and in his opinion was eligible to vote, and that his contention was accepted by the representa- tive of both the Board and the Union. * Counsel for neither Respondent questioned either Hoffman, Sweeney, or Lambert, who is a member of Sweeney's crew, about Sweeney's authority to assign work or to direct, responsibly, the crewmembers. On the other hand, no witness called by counsel for the General Counsel testified that Sweeney gave orders which the employees obeyed or in any manner directed the work of the maintenance crew. 5 Cf. Precision Fabricators v. N.L R.B., 204 F 2d 567, 567-569 (C A. 2). I do not credit Manager Hoffman's testimony that Sweeney merely transmits messages to the other mem- bers of the crew in the manner of a switchboard operator and that he had no obligation to see that the orders are carried out. Nor do I credit the testimony of President Kalman that Sweeney's "extra" duties are limited to making sure that tools and materials are available. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the night maintenance crew has no leader, Sweeney testified that he was "positive" that he had no responsibility with respect to the night crew. He explained that he would tell the highest paid man on the night crew about any uncompleted job and the night crew "just continue[s] on the work ...." In his words, "If [the night crew] don't do [the job], it's nothing to me" and he indicated that his responsibility for the day crew was equally limited. However, his prehearing affidavit states: On August 5, 1964 1 went back to the plant [at night] to tell Hudson Gorman who is a night maintenance man to work on a tapper machine that was broken done. I had a part for it in my tool box which I was going to give him that day at 5 p.m. before I left I go back to the plant many a night. I'm a leadman and I've got men on the night crew and the day crew I'm responsible for. [Emphasis supplied ] 6 Having considered the record as a whole, I find that Sweeney has more responsi- bility and authority than the other members of the crew. However, I conclude that this is due primarily to his greater skill and experience and not to the fact that he is a supervisor. I am convinced that his assignment and direction of work is routine in the usual sense of the word and does not require the exercise of independent judg- ment. Precision Fabricators v. N.L.R.B., supra. Accordingly, I find that Sweeney is not a supervisor within the meaning of Section 2(11) of the Act.7 I also reject the General Counsel's contention that even if Sweeney is not a super- visor within the meaning of Section 2(11) of the Act, Mid-States "held him out to the employees" as a supervisor or an agent of management. It is true that Mid-States did not notify the employees that Sweeney was no longer a supervisor, that the employees know both that he has more responsibility than the other crewmembers and that he receives a substantially higher rate of pay. On the other hand, the employees must also be aware that Sweeney voted in the August 1963 election, that he does not attend foremen meetings, and that his greater skill warrants a higher rate of pay.8 Moreover, there is no reason to believe that Sweeney, who was on the Union's nego- tiating committee, was also speaking for Mid-States during the contract negotiations which lasted for several months. On the contrary, it appears that there was genuine arms-length bargaining between the Company and the Union. Finally, even Ray Dobbins, who filed the charges in the instant case and who voiced many complaints against both Sweeney and the Company (see infra), did not include among the latter the charge that Sweeney was acting on behalf of Mid-States as well as on behalf of the Union. On the contrary, it is clear that Dobbins regarded Sweeney as a representative of the Union only and that his complaint against the Company was that its actions were the result of pressure by the Union. C. The contract and the general enforcement of certain of its provisions 1. The contract Each employee was given a copy of the contract, dated April 3, 1964. It contains, Inter alia, the following provisions: Article Two Union Security 2.1 The' Company recognizes the right of the employees within the bargaining unit to join the Union, and the Company will not interfere with nor restrict any employee in joining the Union of his own free will No employee in the bar- gaining unit shall be discriminated against by the Company because of the employee's membership in the Union 9 8 Needless to say, the above conflict between Sweeney's testimony and his affidavit has been considered in determining his credibility generally. 7 Since the Decision and Direction of Election in which it was found that Sweeney was a supervisor was issued while the plant was being operated by an entirely different com- pany and in view of Sweeney's subsequent demotion by Mid-States, I do not regard myself as bound by that Decision 8 Carrick promoted Sweeney shortly before the election which was set aside by the Board and it may be that Carrick gave Sweeney supervisory authority on paper only and only for the purpose of making him ineligible to vote Carrick's attitude toward the Union is disclosed by the fact that during one of the Union's campaigns , it discharged Mrs. Ray Dobbins and reinstated her only after an unfair labor practice charge was filed. 0 Mississippi is a right to-work State. MID-STATES METAL PRODUCTS, INC. 879 Article Twenty-Three Dues Collection 23.1 The Company agrees to deduct from the pay of members of the Union, the regular monthly dues and initiation fees established by the Union .... 23.3 The Union agrees to furnish the Company a signed voluntary authorization to deduct such initiation fees and dues .... 23.5 ... provided, however, that any employee may furnish the Company with a statement withdrawing such authorization, and in such case the Company shall cease to make further deductions. If any employee who has signed a voluntary authorization under the provi- sions of the Article shall withdraw such authorization, such employee shall not be privileged to file with the Company another authorization for a period of six (6) months thereafter. The section of the contract entitled "Shop Rules" sets forth four classes of rules; i.e., A, B, C, and D. The introduction states that the following penalties "will gen- erally" be imposed- violation of a class A rule, a warning in writing; of a Class B rule, layoff of 1 day; of a class C rule, layoff of 3 days; of a class D rule, discharge. The following rules are listed under class B, layoff for I day: 15. Unauthorized soliciting or collecting contributions for any purpose what- soever on Company premises. 16. Unauthorized distribution of literature, written or printed matter of any description on Company premises. The following rules are listed under class D, discharge. 30. Threatening, intimidating, coercing or interfering with employees or supervision at any time. 40. Possession of weapons on Company premises at any time 10 2. The Company's reaction prior to August 1964, to reports of activity for and against the Union on company time and premises As set forth supra, the contract provides that the Company may lay off an employee for 1 day for "unauthorized soliciting ... for any purpose whatsoever on Company premises" (rule 15) and may discharge an employee for "Threatening, intimidating, coercing or interfering with employees ... at any time" (rule 30). Although rule 15 applies to company property as well as company time, Manager Hoffman testified creditably that the Union asked during negotiations about solici- tation during lunch periods, breaks, and on the parking lot and was told that the Com- pany "couldn't police such times ... people sitting around the table and talking ...." According to Hoffman, Second-Shift Superintendent Clarence Woods told him, prob- ably in June, that "it was getting to be a general thing" for employees to discuss, dur- ing breaks and lunch periods, joining or withdrawing from the Union.1' Hoffman told Woods "to turn his back and not see it, that [it] wasn't any of the Company's busi- ness " However, there is no evidence that the employees generally, each of whom received a copy of the contract, were ever told that the Company did not intend to enforce the rules against unauthorized soliciting or distribution of literature "on Company premises." Manager Hoffman testified that the Union reported on several occasions in the spring and summer of 1964 that employee Ray Dobbins was campaigning against the Union on company time and that he had told Dobbins that there should be no such activity during working hours. During the same period, Hoffman admittedly told the union officers on several occasions that he had heard that the Union was soliciting on company time and that they should stop it. When asked if he had heard about solicitation by the Union on Company time "a whole lot," Hoffman answered, "Yes, sir." He was then asked, "But you hadn't done anything about [it]"; he answered, "I did not." 10 Since the shop rules are set forth in the contract, I assume for the purpose of this Decision that they were arrived at as the result of collective bargaining. However, Man- ager Hoffman's prehearing affidavit states that "The shop rules were drawn at Greenville, Mississippi , by [President ] Kalman and myself." 11 Unless stated otherwise, all events set forth herein occurred in 1964. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hoffman explained that the reports about activity on behalf of the Union on com- pany time were "rumors" from "supervision ." He could not recall asking the super- visors either the source of their reports or the identity of the "guilty" employees. However, he admitted, "We had our suspicions"; i e., about which employees were involved. He testified that one of the reports involving the Union came in the sum- mer of 1964 when four Negro employees came to him and expressed the fear that they were going to be accused of "messing around with a white girl or something." He asked the employees who was involved but they would not tell him. Thereafter, Hoffman called Union President Sweeney in but Sweeney asserted that none of "his" people was responsible. However, the matter was not brought up at any official meet- ing between the Company and the Union and was not "pursued any further in any manner." Probably during the same period, the supervisor of the plating department reported to Manager Hoffman that some of the girls said that "they were trying to be forced into joining the Union." Hoffman was not told and did not inquire what kind of force was being used or when it was being used. It is equally clear that Hoffman made no effort to learn the identity of the persons allegedly trying to "force" the girls into joining the Union and he admitted that this particular incident may not have been called to the attention of the Union. Hoffman also admitted that Dobbins repot led several times over a period of 3 or 4 months that the Union was "threatening" employees; i e., that they were violating rule 30 and were, therefore, subject to discharge under the contract. Again, there is no evidence that management made any meaningful investigation of the reports. Hoff- man testified merely that the Company "was trying to find some specific incidents" it could point to and that the supervisors were told "to keep their ears and eyes open." Again, however, Hoffman did not direct anyone to question any particular employee and did not question anyone himself. His only action vis a vis the Union was to tell Sweeney that if he could get a specific instance he was "sure of," the guilty employee or employees would be discharged Admittedly, the "rumors" of violations of rule 30 (threats, intimidation, etc.) involved Union President Sweeney, Union Negotiator John Lambert, and Union Seigeant at Arms John Hoop. However, Hoffman did not talk to either Lambert or Hoop until August 8 when he spoke to Lambert. (See iitfia ) 12 Assistant Manager Busch likewise testified to a number of complaints by Sweeney that Dobbins was trying to get employees to withdraw from the Union and Busch admitted that Dobbins had "stopped" him at different times to complain that Sweeney was "on him" because he was talking against the Union. Busch, like Hoffman, admit- ted that he had heard "tumors" from supervision about activity for and against the Union on company time but that he did not ask the source of the "rumors." Like Hoffman, Busch had also heard "rumors" that Sweeney, Lambert, and Hoop had vio- lated rule 30 (threatening, intimidating, etc.) The "rumors," Busch said, continued over a period of months and at least some of them came from Day-Shift Superin- tendent Bill Smith. However, Busch could not recall what Smith said. (Smith was not a witness.) Admittedly, Busch did not ask Smith any questions and all he ever did about the rumors was to tell Sweeney "it" had to stop.13 D The events in April-June 1964 There were three union campaigns at the plant, the first two while it was owned by Carrick Willard Ray Dobbins, a shipping department employee, was active on behalf of the Union in the last two campaigns and was a member of the employee organizing committee although he felt at one time that the Steelworkers rather than a chemical union should represent the employees. Dobbins was also a member of 12 Although Hoffman at times seemed to be testifying that the reports came only from Dobbins, his prehearing affidavit states that he had heard rumors that Sweeney, Hoop, and Lambert were violating rule 30 but he could not get anyone other than Dobbins to testify and name names 18 At other times, Busch seemed to deny that the rumors concerned anything other than "soliciting " Indeed, 'usch's testimony contains so many contradictions that it is fre- quently difficult to determine what his testimony is. Moreover, his testimony is often contrary to that of Manager Hoffman and the witnesses for the Respondent Union al- though the latter were not adverse to the Company Having considered Busch 's testi- mony as a whole, I conclude that he was a completely unreliable witness and have credited his testimony only as to matters which are either contrary to the Company's in- terest or which are established by the testimony of other creditable witnesses MID-STATES METAL PRODUCTS, INC. 881 the Union's bargaining committee and he and Union President Sweeney disagreed during negotiations about certain of the Union 's demands. After the contract was signed, Dobbins expressed the opinion that Sweeney was running the Union single- handedly; Dobbins also opposed a proposed increase in union dues or assessments.14 About 7.30 a.m. on April 27, 1964, Union President Sweeney asked Dobbins about the rumor that Dobbins was "pulling out" of the Union .15 Dobbins said that he had not thought much about it but if Sweeney "kept on threatening and calling people names," he (Dobbins) and his wife would withdraw. Sweeney replied that Dobbins could not withdraw and asked "who in the hell" Dobbins thought he was. Dobbins expressed the opinion that he had the right to withdraw from the Union and Sweeney asked if Dobbins would go across the street and fight it out 16 Dobbins suggested that they go to Manager Hoffman and let him "settle" the argument.17 Hoffman was not in the plant and Dobbins reported his conversation with Sweeney to Assistant Manager Busch. Busch sent for Sweeney and Day-Shift Superintendent Bill Smith. (As noted supra, Smith was not a witness.) Dobbins began the meeting by saying that a rumor about his wife jumping on another employee must be stopped.is Dobbins then told Busch that Sweeney had "jumped on him" and wanted Dobbins to fight but that he was not going to fight Sweeney. When Sweeney stated that he had heard that Dobbins was going to "pull out of" the Union, Dobbins replied that if Sweeney "didn't stop what he was doing," he would "pull out." Dobbins asked Busch if he had the right to withdraw from the Union and Busch answered in the affirmative. Sweeney also said that he had heard that Dobbins was going to write "withdrawals" for other employees and Dobbins answered that he had not planned to but he would be glad to do so if requested Sweeney said that Dobbins "couldn't do it" but Busch said Dobbins could if he did it "off Company property on his own time." Sweeney commented, "Yes, and I can beat the hell out of you, too." Busch told both men that if there was going to be "trouble," he wanted them to keep it away from the plant. Dobbins officially withdiew from the Union that day. Busch admitted that Dobbins reported during this period that Sweeney had "invited him outside" but that he did not make any effort to determine whether or not the 16 Although both Respondents argue that the Dobbins-Sweeney disagreements were over personal matters, it is clear that they concerned primarily, if not entirely, union policy and the administration of the local As late as March or April 1964, Dobbins was asked if he was interested in becoming vice president of the Union , that office being vacant be- cause of a resignation . Dobbins was not interested and it was at that time that Carson / Bowman was elected vice president. 15 Although Dobbins apparently signed a union withdrawal slip on April 22, he did not notify either the Union or the Company officially until April 27 when he sent each a registered letter. 1i As noted supra, the contract contains no union-security clause and provides that an employee can cancel his dues-deduction authorization. 17 The above findings are based on Dobbins ' credited testimony Sweeney's version of the conversation is not greatly different He admittedly began the conversation, his reason being a report by Union Treasurer Arthur Dunn that Dobbins had said that he and Mrs Dobbins were withdrawing from the Union and 75 other members wanted to get out Sweeney assertedly asked Dobbins what the matter was and Dobbins replied, "I told you fellows if you me up that I was going to get even with you." Sweeney then told Dobbins , ". . . if you want to get even with me at anytime , you can just come across the road here" and "We can settle it " As will be seen, I have credited Dobbins' testimony generally and have discredited contrary testimony . However, I credit the testimony of employee Walter Doyle Blain that Dobbins used profanity frequently and do not doubt that Dobbins ' language in his conversations with Sweeney and other employees was less polite than it was at the hearing. It also may be that Dobbins was mistaken when he denied certain visits with union representatives during the Union 's campaigns However, he did not deny his past activity on behalf of the Union and had no reason to testify falsely about the visits. Under these circumstances , Dobbins' testimony as to such matters , even if erroneous , does not cause me to discredit his testimony generally Although there are some variations in Dobbins' several prehearing statements and between his statements and his testimony , there are no material contradictions with respect to the b4sic facts. 19 Busch sent for Union Committeewoman Grace Peden who said she knew nothing about the rumor. Busch told her he wanted the rumor stopped and Peden left Peden was not a witness. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD report was true.19 According to Busch, the only investigation he made was to tell both men that the "squabbling" had to stop. Manager Hoffman also testified that Dobbins told him in the spring that he and John Lambert, a member of the Union's negotiating committee, were arguing back and forth and calling each other names.20 It is undisputed that Hoffman did not talk to Lambert about Dobbins' report. In the next several months, Dobbins was called "scab," with various modifying adjectives, on several occasions. One was in early June when Sweeney and Lambert were together and one of them called Dobbins an "Alabama scab" and the other called him an "s o.b. scab." Dobbins testified, without denial, that he reported the incident to his foreman, Beamer Smith, who told him to just forget it and not worry about it.21 (Smith was not a witness ) Dobbins further testified without denial that a day or two before the contract was signed, i.e., in early April, Sweeney and John Hoop were oiling a motor and Sweeney turned toward employee Betty Ridding- ton and said, "Look at those scabs over there." A few days later, according to Dob- bins' undenied testimony, Dobbins heard Sweeney tell employee Jack Donelson that "The Company has got you in a position now that they can fire you if you don't come on and join the Union." During the same period, Dobbins, his wife, and employees James McCollum and James Morrow were at a store near the plant at lunchtime Sweeney, Lambert, and another man were present and they had a bottle of whiskey and a bottle of vodka.22 When they returned to the plant, Sweeney and Lambert called Dobbins names and he, in turn, called Assistant Manager Busch and told him about the drinking and the name calling. Busch asked if Dobbins would swear to a statement containing these facts and Dobbins said he would and that his wife and McCollum and Morrow would also swear to it. Busch told Dobbins he would "contact" him later but the incident was never mentioned again. Busch testified that Dobbins called him and said that Sweeney and other employees were drinking, during lunchtime. When asked if Dobbins said anything else, Busch answered, He said something about he didn't-he didn't say they called him names, but he said something about-well, I just don't remember, but he did can me. Busch then admitted that Dobbins mentioned "something other than drinking" and "might" have said they called him names. Busch was unable to recall what he told Dobbins but admitted that he did not make any investigation because, he said, the drinking occurred off company property.23 >e Busch insisted repeatedly that Dobbins had not reported that Sweeney was threaten- ing him and persisted in his description of Dobbins ' reports as reports of "squabbling back and forth or whatever you call it." He admitted that Dobbins complained that Sweeney was "on" him because he was talking about getting out of the Union and that Sweeney was calling him names. (As set forth infra, Busch said of a later report that he would not call it a "threat because there was no gun mentioned.") Busch's prehearing affidavit states: "There could have been a meeting in late April , 1964 at which time Dobbins and Sweeney were in the office as a result of Dobbins ' complaint that Sweeney had threatened him with physical violence." Busch also stated in his affidavit: "I don't know why the Company didn 't enforce Rule 30 [threatening , intimidating, etc.] against Joe Sweeney, Johnnie Lambert, and John Hoop," and "both Sweeney and Dobbins would say each one threatened the other and they would both deny it. I can remember Dobbins saying Sweeney told him be wanted to meet him outside , across the road, and have it out and Sweeney would say Dobbins wanted to get even with Sweeney ." I do not credit Sweeney's testimony that a gun was mentioned in the April conversations. 20 Later, Hoffman testified that he "believed" that Dobbins complained about Lambert for the first time on August 6. 211 do not credit Sweeney's testimony that he did not speak to Dobbins between April 27 and August 4. It stretches credulity too far to believe that Sweeney , the Union's presi- dent, would exercise such self control vis a vis Dobbins , a recent union negotiator who had since withdrawn from the Union and was working to get other employees to with- drawn. Sweeney's testimony in this respect is another reason why I have not credited his testimony concerning his conversations with Dobbins. 22 The above findings are based on Dobbins ' undenied testimony. 23 One of the class C rules (layoff of 3 days) reads: % Reporting for duty while under the influence of any alcoholic beverage . . . or when' suffering from alcoholic hangover . .. . MID-STATES METAL PRODUCTS, INC. 883 Dobbins described an 8- by 10-foot tarpaulin which hangs in the maintenance department to deflect the light of welding. (As noted supra, Sweeney is the leader of the maintenance crew of which Lambert is a member.) According to Dobbins' undenied testimony, about the middle of June a 3- by 4-foot picture was drawn with white crayon on the tarpaulin and under the picture there was written in small letters "Ray Dobbins" and on the right side, "Alabama scab" and "Meet you at Joe's Cafe." Dobbins further testified without denial that the tarpaulin remained in that condition "for at least two or three days." There is no evidence that any action was taken by management to remove the "sign" or to determine who was responsible for it Dobbins also testified without denial that about the middle of June, employee James Earl Jones had "got his call for the Army" and Sweeney told Jones that he "had better come on and join the union so you will have a job when you come back." Dobbin told Sweeney that Jones did not have to join the Union in order to have a, job after his Army service ended "because the law says that he will have a job whether it is in a union contract or not." Union President Sweeney admitted that he had heard Lambert call Dobbins an "Alabama scab" and Lambert admitted that on one occasion Dobbins greeted him with, "Hello, punk," and he, in turn, called Dobbins an "s-o-b." Lambert also admit- ted that he heard Union Seigeant at Arms John Hoop call Dobbins an "Alabama scab" after the latter withdrew from the Union.24 E. The events on August 4 About August 1, Dobbins and his sister-in-law prepared an antiunion petition and Dobbins obtained several signatures in the plant during the lunch period on Tuesday, August 4.25 About 1.30 p.m. that day, Dobbins was in the shipping department when Sweeney and Lambert came up and Sweeney asked about the petition Dobbins had. Dobbins agreed that he had a petition and Sweeney told him, "Well, I am going in and get Mr. Hoffman to fire you .... Besides ... we are going to beat the hell out of you." Lambert spoke up to say, "If you will go outside .... We will beat the hell out of you now." Dobbins replied that Sweeney and Lambert knew where he would be / /2; Sometime in 1963 employee James McCollum gave Union Sergeant at Arms John Hoop 'a $3 check which "bounced " Thereafter, McCollum gave Hoop $1.50 and nothing was said about the other $1 50 until 6 months later. Shortly after McCollum withdrew from the Union, Hoop mentioned the check and McCollum offered to pay the amount due but Hoop refused to accept payment and said he was going to turn the check over to a col- lection agency . (Hoop was not a witness ) McCollum went to see Manager Hoffman and told him that Hoop was threatening him with the check because McCollum had withdrawn from the Union . McCollum also told Hoffman and Busch that Lambert had called him "scab" and testified that Lambert frequently called him a "scab " McCollum also testified that Sweeney called him "quitters" and that Hoop called him "scab." After McCollum gave a statement to a Board representative , Hoop returned the check . McCol- lum testified that he withdrew from the Union because "All it was doing was start trouble" and he "didn't want to get involved with it " McCollum expressed the opinion that some of the others might have wanted to withdraw but "it looked like they were scared to get out of the Union." Later, McCollum asked to rejoin the Union but he did not have the money for the initiation fee. u The petition reads: We the undersigned are employees of Mid -States Metal Products Company, Green- ville, Mississippi . We are presently represented by the International Chemical Work- ers Union . They were certified as our bargaining agents on September 16, 1963. We do not believe that the International Chemical Workers represent the majority of the employees of the Mid-States Metal Products Co, Greenville, Mississippi. We re- spectfully request by this petition that an election be held to resolve this question. Dobbins' name heads the list of 49 names. It is possible , of course , that some of the employees who signed the petition had never belonged to the Union and were among those who voted against it in the Board-conducted election prior to the Union's certification There is no claim that the Union had, in fact , lost it majority. 217-019-66-vol. 15 6-5 7 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after work if they wanted to fight but that he was not going to fight on company property 26 About 2 p m , Union Vice President Carson Bowman asked Dobbins about his conversation with "Joe and them." Dobbins told Bowman that Sweeney and Lambert had tried to pick a fight but that he was not going to fight inside the plant and that Sweeney had "jumped on" him about the petition . ' Bowman told Dobbins that he "had better stop with the petition because Joe was going to get [him] fired." When Dobbins said he was not going to do anything to get fired for and did not see how Sweeney could get him fired, Bowman asserted that Sweeney "would find a way to get [Dobbins] fired "27 Dobbins testified without denial that he reported the above conversation to his foreman, Beamer Smith, saying that he [Dobbins] had to do something, that it seemed that Hoffman and Busch did not want to do anything about it. Dobbins asked Smith if it would be all right if he called the police and Smith said Dobbins could use the telephone. (Smith was not a witness.) Dobbins called the police at about 2:30 p.m. Employee Walter Doyle Blain testified that on August 4 he heard Sweeney say something to Dobbins after which Blain walked closer and heard Lambert say that if Dobbins would go outside, Lambert would "whip" Dobbins. According to Blain, Dobbins replied that he was at home every afternoon. Sweeney also told Dobbins that he was going to "tell" Manager Hoffman. Employee James R. Morrow testified that on August 4, he heard raised voices and walked over to where Sweeney, Lambert, and Dobbins were standing and heard Lam- bert say to Dobbins, "If you will go outside, I will beat the hell out of you." 28 Employee James Henry McCollum testified creditably that he was present on August 4 when Union Vice President Carson Bowman came up and said something about a petition and told Dobbins if "he didn't stop it, Joe [Sweeney] was going to get him fired over it." Bowman commented that he had heard that Dobbins had had some 26 The above findings are based on the credited testimony of Dobbins which is corroborated in part by the testimony of employees Blain, Morrow, and McCollum set forth infra. I do not credit Sweeney's testimony that he told Dobbins that it was the first time he had spoken to Dobbins in 3 months, that he merely asked about the petition and walked away when Dobbins said he had no "damn thing" to say to Sweeney Sweeney admitted that as he walked away he heard Dobbins and Lambert "cussing" each other. As noted supra, I find incredible Sweeney's claim to such self-control. According to Lambert, Sweeney told Dobbins that he would like to talk to Dobbins about the petition, that Dobbins said that he had told them what he would do if "you s-o -bs fouled" him up , whereupon he [Lambert] said , "You have called me a s-o-b the last time . . . . If you will go across the street with me . . I will whip your Lambert admitted that he and Dobbins "cussed " each other on "numerous occasions " and that he had warned Dobbins earlier that he would "whip " Dobbins if the latter ran over him with a high -low truck. I do not credit Lambert's testimony that Sweeney merely told Dobbins that he would like to talk to Dobbins about the petition and that he [Lambert] threatened to "whip" Dobbins only because the latter called him an "s-o-b " n The above findings are based on Dobbins ' credited testimony Bowman admitted be- ginning a conversation with Dobbins on August 4 but said that be told Dobbins that he did not like to see anyone get into trouble and that Dobbins said that he was not the one who was going to get into trouble, that Sweeney and the others were going to get into trouble, "because I've got permission from Chief Burnley to carry a gun and I've got permission to use it," adding , "Joe Sweeney and them came back today and threat- ened me " ( There is no evidence that Dobbins ever talked with Police Chief Burnley ) Accordingly to Bowman, Dobbins went on to say that he had about 200 people ready to get out of the Union to which Bowman answered that he was not sure but he did not think employees could get out of the Union until the contract expired Dobbins asserted that he had "checked" and the employees could get out In September . ( The certification year ended in September 1964 ) Bowman said that McCollum saaid "something about Joe Sweeney coming back and threatening him" but said he could not recall McCollum's exact words I do not credit Bowman 's testimony that Dobbins mentioned a gun and discredit his implied denial that he made the statements attributed to him by Dobbins. According to Bowman , he told Sweeney about 6 p in . that Dobbins was upset and was talk- ing about a gun and Sweeney said he would be careful . I do not credit any testimony to the effect that Dobbins mentioned a gun in any conversation with any employee prior to August 5. ii Morrow testified without denial that on a different occasion he heard Johnnie Hoop, the Union 's sergeant at arms, say he or "they" were going to "stomp Ray Dobbins" and that the statement was made in connection with the union "deal " MID-STATES METAL PRODUCTS, INC. 885 trouble with Sweeney and Lambert that day and Dobbins agreed but said that he was not going to fight them because he did not want to get fired. McCollum did not hear anything said about a gun. Either on August 4 or 5, Lambert and another employee followed Dobbins as he and his wife drove home from work. They made no effort to stop Dobbins and drove on when Dobbins reached home. F. The events of August 5 1. The events during the day The regular monthly meeting between the Union and the Company was held orr Wednesday, August 5 The official minutes show that the Union was represented by Union President Sweeney, Grace Peden, Will P. Phillips, and Harvey Metzger. The Company was represented by Assistant Manager Busch, Day-Shift Superintendent Bill Smith, and Mary Moe. They state in relevant part. Committee requested Ray Dobbins be reprimanded for agitating employees against Union. Company stated it would stop him from doing this on company time.29 After the meeting with the Union, Manager Hoffman sent for Dobbins. Assistant Manager Busch and Day-Shift Superintendent Bill Smith were also present. According to Dobbins' credited testimony, Manager Hoffman said that he had just had a "committee meeting with union officials" and that there was not going to be anything but "trouble" if Dobbins kept on getting the petition signed during the lunch hour and that Dobbins would have to stop it.30 Dobbins asked if Hoffman was going to stop Sweeney and others from signing up employees for the Union dur- ing the lunch hour and Hoffman said "yes" and that he had told Sweeney that there would be no more signing of the petition "inside the plant." Dobbins asked, "What about the parking lot" and Hoffman started to say something but Assistant Manager Busch said, "You said theie would be no signing of the petition [inside] the plant; you did not say anything about the parking lot." When Dobbins asked Hoffman if he was going to do anything about "Joe [Sweeney] and them," Hoffman replied that he "couldn't do anything, there was so much going on out there that he couldn't do nothing about it " Dobbins further testified creditably that he told Manager Hoffman that Sweeney and others had "approached [him] on several occasions and threatened [him] and [he] had to have something done about it." In addition, Dobbins stated that he had called Captain Wilkerson at the police station and asked if he needed "a permit to carry a pistol-a shotgun." Dobbins went on to say that Wilkerson told him that there was no law against carrying a shotgun in his car but if he was going to carry a concealed pistol he would need a permit. Dobbins told Wilkerson that he did not own a piston, that he was inquiring about a shotgun. He asked Hoffman what the latter was going to do about the gun and Hoffman said, "Ray, we are not going to search cars in the parking lot." 31 Dobbins repeated that "Joe and them" had threat- ened him, adding that Sweeney would not meet him (Dobbins) by himself. Dobbins further stated that he had to have some kind of protection because he knew "how they were when they got drunk and got together " Assistant Manager Busch testified that Dobbins "might" have complained about being threatened by Sweeney because "this squabbling happened quite often." He agreed that Dobbins claimed that he was threatened but said that he did not "take is as a threat" but merely as "squabbling." In Busch's words, "I still don't call it a threat, because there was no gun mentioned." He said that the only thing he could recall Dobbins saying was that Sweeney had "invited him outside or down the road or something like that." 32 29 Although Sweeney claimed that he told the Company at this meeting that Dobbins said he had a gun , a permit to use it , and "would use it on [ Sweeney] if he had to," there is nothing in the minutes or in the testimony of Assistant Manager Busch which. suggests that Sweeney made any such statement ao Although Dobbins testified that this meeting occurred on August 4, I think from the reference to the Company 's meeting with the union committee that it took place on, August 5. ffi Cf Busch 's testimony that the Company did not have the "right" to search cars on, the parking lot ' In his prehearing affidavit , Busch stated : "It seems that at this time Dobbins com- plained that Sweeney had threatened him . . . [Dobbins said] that he had a gun and that the police had given him the right to use it." 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Manager Hoffman, he reminded Dobbins about the rule prohibiting solicitation and told Dobbins that there would be no activity for or against the Union on company time or premises although, Hoffman said, the Union had not complained about Dobbins' activity on company property. (Cf. the minutes which state that the Union asked that Dobbins be "reprimanded" for "agitating" employees against the Union; i.e., without regard to when or where he did so.) Hoffman agreed that Dob- bins asked about the parking lot and said that he reminded Dobbins that he was on the Union's negotiating committee and knew the "stand" the Company took then and stated that its "stand" was "still the same." When asked at the hearing if this "stand" was that there was to be no solicitation for or against the Union on "our prem- ises," Hoffman answered, "That is right." Hoffman was then asked, "Regardless of the time of day?" and again answered, "That's right." In Hoffman's words, he told Dobbins, "I want to warn you once again that solicitation on company time and on company property" is prohibited. [Emphasis supplied.] (Busch testified that "We never mentioned [company property]," that he did not mention it and did not think Hoffman did.) Both Hoffman and Busch testified that Dobbins mentioned a gun saying that he had a permit to carry a gun and had a permit to use it.33 Hoffman claimed that Dobbins did not say that he had been threatened by Sweeney or by any other union Busch's testimony, set forth supra, that Dobbins said that Sweeney had "invited him outside or down the road or something like that.") According to Hoffman, he did not ask Dobbins why he had made the remark about a gun and did not ask Dobbins any questions about the gun.34 Busch told Dobbins that he had better forget about the gun, that he would get himself into more trouble than he could get out of. However, both Hoffman and Busch agreed that nothing was said to Dobbins about rule 40; i.e., the rule under which the Company may discharge an employee for possession of a weapon on company property. 2. The events at 9 p.m. As Dobbins was leaving work on August 5, employee Edward Jones said that he had heard that Dobbins had a petition to decertify the Union and asked if Dobbins would bring it to the plant at 9 p.m. that night, the beginning of the lunch break, saying that there were several people who wanted to sign it. At 9 p.m., Dobbins was on the plant parking lot and several employees came out and signed the petition. Sweeney testified that he arrived at the plant a few minutes after 9 o'clock and employee Harvey McCool told him that Dobbins was on the parking lot with some kind of petition and was asking employees to sign it. McCool offered to show Sweeney where Dobbins was and Sweeney and McCool got into Sweeney's car and drove down to where Dobbins was standing near his car and where others were "writing on something." Sweeney admittedly began the con- versation with Dobbins. It is undisputed that Sweeney's first remark was something to the effect that it was "nice to see so many Company people out here tonight." He went on to say, "Ray, what have I told you about the petition ... I am going to get Mr. Hoffman to fire you, and besides, I am going to get some help and be waiting on you down the road when you come by." Dobbins told Sweeney he had heard all he wanted to hear out of him, adding that he had his oldest boy in the car, that he had a shotgun in the car and would use it if it was necessary, and that if Sweeney was "waiting on" Dobbins "down the road with a mob he could expect six slugs." 35 Dobbins explained at the hearing that the gun was not loaded because his children rode in the car but admitted that there were some shells in the car. According to Sweeney, he told Dobbins that Hoffman had said that there was not to be any more soliciting at the plant and that Dobbins said, " I can do what I 33 According to both Hoffman and Busch, this was the first time they heard about Dobbins' gun. 34 Busch also testified that he asked no questions about the gun. 35 The above findings are based on Dobbins' credited testimony. Employee Edward C. Jones testified that he was beside Dobbins' car when Sweeney and Mccool drove up. According to Jones, Sweeney told Dobbins, "I am going to get you," and at that point the telephone rang, Jones went to answer it and heard nothing more of the conversation MID-STATES METAL PRODUCTS, INC. 887 damn please on my own time ." Sweeney told Dobbins that he would report the incident to Hoffman the next morning and told Dobbins that the petition was not going to do any good, that he "couldn't get the Union out if [he] wanted to for two and a half years . That's what we signed a contract for." Dobbins asserted that he had "checked" and that the employees could get the Union out . Sweeney also quoted Dobbins as having remarked, "I told you fellows one time before if you messed me up that I was going to get even with you." At this point , Sweeney admittedly said, "Yeah, and I told you before if you will come across that road there you can get even with me anytime you get ready ." Sweeney claimed that Dobbins "stuck his hand in his pocket and pulled out a little pistol " and said, "I've got something right here to take care of you with. . . . And I've got a permit to use it." Admittedly, Dobbins did not point the pistol at either Sweeney or McCool.36 As set forth infra, the Company subsequently conducted an investigation of the incident. When it was completed, Hoffman admittedly was not convinced that Dobbins had a pistol or small handgun on the parking lot on the night of August 5. I, too, am unconvinced by the testimony of Sweeney and McCool and discredit not only their testimony that Dobbins had a handgun but their accounts of the events on the parking lot generally There is no evidence that Dobbins owns a pistol and his testimony concerning his conversation with Police Captain Wilkerson is undenied.37 It is undisputed , of course, that Dobbins had a shotgun in his car and it has been found that Dobbins mentioned the gun after Sweeney told him, inter alia, that he was "going to get some help and be waiting down the road when [Dobbins came] by." G. The question of weapons on company property According to Manager Hoffman, he had never heard that there were guns on company property until the morning of August 6; i.e., after the parking lot incident. He admitted , however, that after the Dobbins' incident, he heard "rumors" that at least half of the employees carry guns in their cars . When asked if the "rumors" came from Assistant Manager Busch , he answered , "I would say they did, yes." 38 He said that he had never seen any guns in the cars but admitted that he had never gone onto the parking lot and looked in the cars to see if there were guns in them. At first, Busch flatly denied that he had heard rumors that many employees had guns in their cars on the parking lot but he later agreed that Dobbins made such a statement at the meeting on August 6 39 (See infra.) According to Busch, nothing was done to determine the truth of the "rumors." He explained that the cars were not searched because the Company did not have that right. He also admitted that the employees were never reminded about the rule prohibiting "weapons" on company premises. According to the undenied testimony of employee Edward C. Jones, about a month before the parking lot incident , he saw a pistol in employee McCool's car on the parking lot Jones also testified without contradiction that sometime in August 1964, he and Second -Shift Superintendent Clarence Woods were talking about guns in cars and Woods said that he had a gun in the trunk of his car most of the 33 McCool , whose testimony is similar to that of Sweeney, said that the gun was a "black revolver or pistol with white handles " According to McCool, Sweeney said he was going to call Hoffman and Busch . There is no evidence that Sweeney called either Hoffman or Busch that night but he called the sheriff's office and Union International Representa- tive Hubert Mills Mills told Sweeney to try to schedule a meeting with the Company and one was held on the afternoon of August 7. (See infra ) 37 Although union counsel reminded Dobbins that Captain Wilkerson was still in town, the Union did not call Wilkerson to refute Dobbins' testimony concerning his conversation with Wilkerson . McCool first testified that he did not believe that any of the other employees could hear what was said, but when it was pointed out that his prehearing affidavit stated otherwise , McCool conceded that if they had been "interested" they could have heard the conversation 38 Later, Hoffman said that be did not know where the rumors came from 3° Busch stated in his prehearing affidavit that although he had "heard something to the effect that there were other guns on company property , that at least /, of the em- ployees had guns in their cars , I can 't say when or where I heard it " 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time. Union witness Harvey McCool agreed that employees carry guns in their cars on the parking lot, particularly during the hunting season, and testified that he so stated during the investigation August 6 40 (See infra.) As set forth infra, the parking lot incident was discussed at a meeting the next day and Dobbins stated at that time that a check would show that half of the cars had guns in them According to Sweeney, neither Hoffman nor Busch seemed "surprised" and Hoffman laughed about it and said that he "didn't know there was so many guns in Mississippi, that you could see them hanging in trucks and things...." 41 H. The events on August 6 On the morning of August 6, Sweeney went to the office of Assistant Manager Busch and stated that Dobbins had threatened him with a revolver," that something had to be done about Dobbins, and that he wanted a company-union meeting. When Hoffman arrived, he heard Sweeney's story and sent for Dobbins and Day- Shift Superintendent Bill Smith 42 When Sweeney repeated his claim that Dobbins had pulled a pistol on him, Dobbins denied that he had a pistol the night before but admitted that he had a shotgun under the seat and pointed to it with his toe and told Sweeney he had better be prepared "to take six slugs in the belly . . . if Sweeney was going to meet him down the road... 43 Hoffman could not recall 10 Sweeney admitted that at one time MeCool.had a "small bat," about 18 inches long in his car. Sweeney had referred to the "bat" in his affidavit as a "billy club" and he was questioned about his use of that term. He admitted, "If somebody got after you with it, they could use it for a billy club, certainly" but said that it was just a child's bat. When asked if he normally refers to a child's bat as a "billy club," Sweeney replied, "Well, the way [McCool] was playing with it the day I seen him, yes, Ma'am . . . He was playing with it like it was a billy club and he was chasing this boy on the parking lot, playing with him." McCool said that the handle of the bat or billy club was wrapped in friction tape, that one day an employee was "picking at" him, threw something at him, and he (McCool) shook the bat or club at the friend but not "seriously." McCool admitted that it had the appearance of a "large blackjack" and that it was in his car "most of the-time." Although McCool asserted that the bat or club was basically a toy that his children played with, he did not explain why, in that case, he kept it in his car instead of leaving it at home where the children could play with it. According to McCool, the batclub was about 18 inches long and "an inch through," dimensions which suggest that it more nearly resembled a blackjack than a bat. 41 Sweeney could not recall that Hoffman replied to Dobbins' comment, "Yeah, that's true, I didn't know there were so many guns in Mississippi." In his affidavit, Sweeney stated, "[Dobbins said] . . . if you check the cars in the parking lot about half of them carry guns. Mr. Hoffman said that it was true that there are a lot of guns carried in Mississippi." "Hoffman tried to but could not locate McCool. McCool worked on the second shift and had given the Company no telephone number. sa For some reason, Hoffman and Busch, particularly the latter, were reluctant to admit that Dobbins made it clear to them that his threat was qualified ; I e., that he said that he would use the gun if Sweeney and others met him down the road. The nature of much of Busch's testimony is illustrated by his answers to the following questions: Q. What did [Dobbins] say? A. He said, "I did have a shotgun," he said, "And I pointed to it with my foot and I had six shells laying on the dash and I said I would pump six shells in his belly." i k = } i F M Q. Are you sure he said laying on the dash? A. Well, it was dash or seat. He said laying in the car Q. A. Q. A. He said on the dash? Yes. You are positive of it 9 Yes. * w s s Q. He didn't say on the seat? A. I am not positive Q. So, you are not positive where they were, are you? A. I am not positive where the shells lay. MID-STATES METAL PRODUCTS, INC. 889 what, if anything, Sweeney said when Dobbins made the above statement. He went on to say that Sweeney admitted that he was at the plant the night before, was told that Dobbins was on the parking lot with a petition, that he went over to Dobbins, said that "it looks like all of the company men are out here," and that he and Dobbins had an argument. Dobbins testified credibly that Sweeney kept insisting that Dobbins had "pulled a pistol on" him, asserted that McCool would swear to the fact, and told Manager Hoffman that Dobbins should be "fired right then." Dobbins answered that he did not own a pistol. When Dobbins explained that he had a petition and Sweeney came and jumped on him, Sweeney argued that Hoffman had told them the day before that there would be no more soliciting by either side "at the plant." Hoffman said that he had said "in the plant" and had said nothing about the parking lot. At this point, Sweeney said, "I will still beat the hell out of you." 44 According to Hoffman, Dobbins also complained that Lambert had threatened him on August 4 and it was for this reason that he threatened to discharge Lambert at the meeting on August 8. (See infra.) On cross-examination, Sweeney gave the following description of the meeting. After Sweeney's accusation and Dobbins' reply, either Hoffman or Busch said, "Well, Sweeney, I thought that you were the one that pulled a gun . . ." and whoever spoke "was sort of laughing about it." Busch then said he had warned Dobbins the night before about a gun. Dobbins admitted that he had been told about the gun but went on to say "if you check the cars in the parking lot about half of them carry guns." According to Sweeney, Hoffman said "that it was true that [there] are a lot of guns carried in Mississippi," that Hoffman "laughed" and said you could see "guns hanging in trucks and things." Sweeney also testified that Hoffman said, "What you fellows do away from the plant is your business, but I don't want any fighting on the company property." Busch testified as follows concerning Dobbins' admission that he had told Sweeney that he could expect six shells if Sweeney was waiting down the road with a mob: Q. When Mr. Dobbins told you that when Mr Sweeney came up to him in the parking lot he did not have a pistol, but that he did have a shotgun, Mr. Dobbins also said he pointed at the gun with his foot, didn't he A. Yes, sir. Q. And what else? He also said he was willing to use it, didn't he's A. Right. Q But he added a proviso that he was willing to use this only under certain circumstances, didn't he'1 A. I don't know what you mean by that, sir. Q. He said he would use it if these people met him down the road, or waylaid him down the road, or something of that nature, didn't he? A. No, he didn't. s s s s « s Q. You are positive He didn't say that he told them this after they threatened to meet him down the road? A. No. Q. You are sure he didn't say that? A. I say I am not sure whether it was down the road or what. i • t Q. All right, sir, but you are not sure as to whether . . . he admitted saying this after he had been told by Mr. Sweeney that he was going to he met or stopped down the road or something like that? A. I think probably after that. f i i n # R Q. But at any rate he told you, he qualified this remark about the gun by the proviso that these people would be waylaying him or waiting for him and meeting him down the road? He brought this up, didn't he? He did tell you this, didn't he? A. Yes, sir Busch's affidavit states: "[Dobbins] said I don't own a revolver or a pistol .. . I pointed 11 to my shotgun . . . after Sweeney said he would be waiting for me down the road . . . . Busch admitted at the hearing that Sweeney never accused Dobbins either of coming looking for him or of "bothering" Sweeney when "the latter was soliciting people for the Union " ^* The above facts are based on Dobbins' credited testimony. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manager Hoffman announced that there would be an investigation that afternoon and Assistant Manager Busch admittedly told Dobbins that he could have one wit- ness because Sweeney said that he had one. Hoffman also told Dobbins that he was "subject to disciplinary action up to and including discharge ," depending on what the findings were after the investigation.45 According to Company President Kalman, Hoffman called him on August 6 and reported the parking lot incident and expressed his opinion that Dobbins should be discharged . (Hoffman did not claim to have made any such recommendations and it is not clear from his original testimony that he called Kalman on August 6.) Although Kalman at least implied that Hoffman did not tell him that Dobbins admitted that he had a gun on the parking lot , when Hoffman was asked if he had so reported to Kalman, he answered, "I believe I did " Kalman further asserted that he instructed Hoffman to be sure the Company had "definite proof . because the individual involved had been an active organizer for the Union and that there be no charge that we were discriminating against the Union in firing someone who had been an organizer ." Kalman said that he sug- gested that the Company's local attorney secure affidavits . (Hoffman's testimony leaves the impression that the investigation was his own idea. ) Although Kalman appeared to be saying that he was unaware that Dobbins was now campaigning against the Union, I think it most improbable that Hoffman failed to report this critical fact to Kalman . (Cf. Hoffman 's testimony that he told President Kalman in early May about Dobbins' campaign to secure withdrawals from the Union and his testimony, set forth infra, that he called Kalman on August 7 because the com- pany was "in the middle of a jurisdictional dispute"; i .e., a dispute between prounion and antiunion employees.) At 11 a.m., Busch notified Dobbins that Attorney Albert Lake would conduct an investigation at 5:30 p.m. that day and that "Joe has only got one witness, Mr. McCool. . . . One will be all you will need." Dobbins told Busch that he could get several witnesses to come but Busch repeated that one would be all Dobbins needed and if more were needed, they would be called later. The investigation consisted of the taking of unsworn statements from Dobbins, his witness, Tatum, and Sweeney and McCool by Company Attorney Lake. In his statement, Dobbins set forth Sweeney's and Lambert's threats on August 4 to beat him up, Sweeney's threat on the parking lot on August 5 to be waiting for him down the road and his answer ; i.e., "If you're going to be waiting down there, you'd better be ready to take six slugs ." He admitted that he had a shotgun in his car but stated that he did not pick it up . At the suggestion of Manager Hoffman, Attorney Lake, asked Dobbins if he had a pistol on the parking lot and Dobbins answered in the negative saying that he did not own a pistol46 He also told Lake that the shotgun was not loaded but that there were shells in the car . It is undis- puted that as Dobbins was leaving , he asked Busch if he was fired or if Busch wanted him to come to work the next day, and Busch said, "Well, sure, come on in." 47 Tatum stated that he heard Sweeney make a vulgar remark and that he (Tatum) could see Dobbins and knew that he did not have anything in his hand. Sweeney's statement , like Dobbins , referred to his conversation with Dobbins on August 4. He went on to say that when he went over to Dobbins on the parking lot on August 5, Dobbins reminded him that he (Dobbins ) had said he would "get" Sweeney if the latter messed him up and that he told Dobbins that Dobbins could "get" him right now if he would come across the road. At this point, according to Sweeney, Dobbins said that he had "something" to take care of Sweeney and pulled a "small automatic out of his right hand pocket." McCool's statement dealt with the parking lot incident and is similar to the one given by Sweeney . In it, McCool claimed that Dobbins "pulled a small gun with pearl handles out of his pocket." McCool admitted at the hearing that Attorney ss I do not credit Busch 's testimony that after this meeting he and Hoffman discussed how severe a penalty should be imposed and Hoffman said he did not think "he had much choice but to . . . fire Dobbins . . Busch's affidavit contains no such state- ment and Hoffman did not so testify. "According to Dobbins' statement , he told Sweeney that he had called the police and an officer had given him permission "to take his gun because [ he'd] been threatened 3 or 4 times" 47 Dobbins understood Hoffman to say that morning that he was discharged at the close of work that day. However, Dobbins was clearly mistaken for in that case, an Investiga- tion would have been meaningless . In any event, it is undisputed, that Busch told him to come to work on August 7. MID-STATES METAL PRODUCTS, INC. 891 Lake asked if he had seen guns in other cars on the parking lot and McCool answered, "I told him that during hunting season that most everybody that goes out hunting during the day that works on the night shift carries, has guns in their cars, but they are locked up." (The Company did not explain why McCool's admission was not incorporated into his statement ) Although Hoffman and Busch were present during the investigation, neither referred in his testimony to McCool's statement about guns in the cars. Indeed, both argued that no investigation was made of Dobbins' claim that half of the cars had guns in them because they had no reason to believe that there was any truth in Dobbins' statement. 1. The events on August 7 1. The alleged decision to discharge Dobbins On the morning of August 7, Hoffman received and read the statements taken by Attorney Lake. Admittedly, he did not decide to discharge Dobbins at that point but called President Kalman in Detroit and "counseled" with him. Hoffman explained that he talked to Kalman because the situation was a serious one due to the fact that the Company was "in the middle of a jurisdictional dispute"; i.e., a dispute between the Union on one side and "no union" employees on the other. According to Hoffman, as the result of his conversation with Kalman, a decision was reached about what to do about Dobbins and about 10 a m. he told Busch to discharge Dobbins at the close of work 4s However, according to Hoffman, this was not done because Dobbins left early to go to the dentist.49 Dobbins was dis- charged on the morning of August 8. (See Infra.) Hoffman testified that there was some doubt in his mind about whether Dobbins had a pistol on the parking lot and that the decision to discharge him was based entirely on Dobbins' admission that he had a shotgun in his car. 2. The company-union meeting The Union had asked for a meeting and company and union representatives met for about an hour at 1 p.m. on Friday, August 7. The Union was represented by Sweeney, Bowman, Grace Peden, Will Phillips, Harvey Metzger, and International Representatives Hubert Mills and James Nicholson. Both Hoffman and Busch testified that no minutes were taken and Hoffman added that he "assumed" that the reason was that "Mary Moe, who usually takes the minutes, was not there." He said that he did not know why Moe was absent and admitted that the failure to take minutes was not due to the "unavailability" of anyone to take notes On the other hand, Union Vice President Carson Bowman and International Representative Mills indicated that Moe was present. Union President Sweeney listed the company representatives as "Mr. Hoffman, Mr. Busch and Mary Moe, I believe." International Representative Nicholson said that the Company was repre- sented by Hoffman, Busch, and "I believe there was a lady, but I don't recall her name." Moe was not a,witness. In view of the testimony of Sweeney, Bowman, Mills, and Nicholson, I discredit Hoffman's testimony and find that Moe was present and that the absence of minutes was not due to her failure to attend the meeting.50 Hoffman sought to make it appear that the chief topic of the meeting was not the gun incident but Dobbins' antiunion campaign, the Union's countercampaign, and the adverse effect on production of the two campaigns He first testified that although the gun incident was mentioned, it was not discussed at all and that no questions were asked about it. Later, Hoffman admitted that the Union asked what the Company was going to do about Dobbins' soliciting and his possession of the gun and that he answered that an investigation was under way and that the Union would be notified when a decision was reached. (Cf. Hoffman's testimony that the decision to discharge Dobbins was made that morning.) 4° Kalman testified that when Hoffman read the "affidavits," he told Hoffman that he had no choice, that the employee would have to be discharged 491t was decided not to notify Dobbins immediately, Hoffman said, because he wanted to avoid trouble. He explained that he did not know how much support Dobbins had and he feared that Dobbins' discharge might cause a walkout w In my opinion, Hoffman's testimony on this subject casts doubt on the reliability of his testimony generally and, particularly, on his testimony about what was said and what was not said at the August 7 meeting It is one of the major reasons why I dis- credit Hoffman's testimony concerning when the Company decided to discharge Dobbins. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assistant Manager Busch insisted that the meeting dealt only with Dobbins' anti- union activity and denied that the gun incident was even mentioned. He was asked the following questions and gave the following answers: Q. All right, sir. And there was no mention of any threats in this meeting, was there? A. No. Q. Sir? A. No, sir. Q. None at all? Nothing about the revolver in the car came up? A. No, sir. Q. There wasn't any talk about this? A. No, sir. Q. Nobody said anything about it? A. No.51 On the other hand, the Union had requested the meeting because of the gun incident and the testimony of the union representatives indicates that the events on the parking lot were discussed at length. Vice President Bowman testified that he believed that International Representative Mills opened the meeting by saying that Sweeney had reported to him that Dobbins had "pulled a gun" on Sweeney, that he wanted to get together with the Company and find out who was at fault and get "things" straightened out because if people continued to bring guns on to company premises it could grow in to something "bad." Hoffman said that the Company was investigating but Bowman could not recall whether he said a decision had been or would be reached. According to international Representative Nicholson, Representative Mills opened the meeting by stating that there were some "problems" he would like to see cleared up and that Hoffman said the situation was hurting production. Busch stated that the Company was making an investigation of the parking lot incident and Hoffman said that they had reached a decision but did not state what the decision was. According to Nicholson, no one from the Union asked what the decision was or made any comment with respect to Hoffman's announcement. (Needless to say, such a lack of interest is difficult to credit.) He agreed, however, that it was Union Representative Mills who first mentioned Dobbins. The testimony of Union Representative Mills is much more convincing , at least that portion in which he stated that he began the meeting. by announcing that he had asked for the meeting because of the parking lot incident and said that such a situation should not be allowed to continue because someone could get hurt. He admittedly complained about Dobbins' efforts to get employees to withdraw from the Union and agreed that Hoffman said that he had heard that the Union was soliciting on company time. - As for Dobbins, Mills said that Hoffman told the Union that an attorney was investigating and the Company had reached a decision but that he would rather not tell the Union "at this time" what the decision was. Mills admitted that it was brought up that the Union and the Company had negotiated a contract which pro- hibited employees from having weapons on company property. According to Mills, "it seemed like" Sweeney said that Dobbins had a shotgun on the premises and "that this was a violation of the contract, and that at least something should be done about it... . In addition, Mills admitted that Sweeney also pointed out that the contract provided for disciplinary action up to and including discharge. Union President Sweeney gave the following account of the meeting on direct examination • Hoffman began by talking about how production had been hurt by the "squabble" that was going on and stated that it had to stop.52 Mills said that m Such testimony is not only contrary to that of the other witnesses but is completely incredible on its face as is also Hoffman's claim that the gun incident was mentioned but not discussed. Their testimony, of course, is another reason why I have concluded that Busch and Hoffman were unreliable witnesses Busch and, to a lesser extent, Hoffman appeared throughout to be seeking to conceal, minimize, or misrepresent the true facts. Such an attitude of course suggests that there were facts which they wished to conceal, minimize, or misrepresent. ea Hoffman testified that he told the union representatives that production had dropped about 20 percent because of the "unrest" caused by the "conflict of interests " He also testified that production had improved about 15 percent "since this activity was corrected." There is no evidence of any antiunion activity after Dobbins was discharged. MID-STATES METAL PRODUCTS, INC. 893 the Union would work with the Company to achieve harmony and it was agreed that Mills would talk to the employees and tell them that "it didn't matter one way or the other whether they belonged to the union" and that "nobody would pressure them." Sweeney went on to say that the Dobbins' "situation" was discussed, including the parking lot incident, and Hoffman said that the Company had made a decision- However, unlike the other witnesses, Sweeney indicated that Hoffman made the nature of the decision clear for, according to Sweeney, Hoffman said that "he hated to see anybody fired or lose their job, but . . . under the circumstances that they couldn't see no other way out." Sweeney' argued, as had the others, that if Dobbins "got by with bringing that gun" on company property, that somebody else would bring a gun, and they would get in a squabble. In short, Sweeney told Hoffman that the decision which Hoffman indicated had been reached "was about the only thing [the Company] could do." On cross-examination, Sweeney repeated his statement that he reminded the Company that Dobbins had admitted having a gun on the parking lot. Sweeney also admitted that he pointed out that Dobbins had broken the contract and "should be" fired for it. He insisted, however, that he said nothing about Dobbins being fired until after Hoffman indicated both that the Company had made its decision and the nature of that decision by saying that "he hated to let the man go, that Ray was a good worker." However, Sweeney's prehearing affidavit reads in pertinent part: I'm not sure but I believe it [was] the next afternoon August 7, 1964, at about 1 p.m.-that Mr. Mills, Bus. Rep. Nicholas [sic] from Memphis, the plant com- mittee and the Company was represented by Mr. Hoffman, Mr. Busch and Mrs. Moe-McCool was not present. /s/ JMS (end page 11) At this meet- ing Mr. Hoffman talked about /s/ JMS the troubles brought about by the split between Dobbins and the union insofar as it showed up in production, etc. Mills said he could see where a situation like this would hurt production and he was willing to work with the Company anyway they could to straighten the situation out. 4 was ghee Mr. Wegm A Fi said t the Company ha4 desicled #e "^ "" '. •^.-'^' let 4ay Debbtns go- based -oft •Ehe ata` n -lie Itat! made 4e the Gampita e - te eey that-he l" e- ge wh4 44n- an eampaiw premises, /s/ JMS Mills never did suggest nef anyeae of the ueiea suggest /s/ JMS that the company fire Dobbins before Hoffman told us the Company's decision. I said Ray made the statement at the meeting yesterday morning (at 8.00 a in. August 6, 1964) that he had been warned about the gun, the man did break the contract, and the man should be fired. Otherwise everyone would start bringing guns out to the plant. It was after this Mr. Nicholas [sic] Bus. Rep. said it looked like the only thing the Company Is/ JMS (end page 12) could do under the circumstances. Mr. Hoffman then said he hated to see anyone get fired but on the basis of the investigation where [Dobbins] had signed a statement to the fact that he admitted having a shotgun-to the company lawyer and in his presence after being warned about having a gun . The company had no choice but to fire him. Hoffman said I'm not discharging [Dobbins] because of the pistol, it was for one reason only-[Dobbins] admitted having the shotgun on company premises after having been warned. The meeting was adjourned about 1 hour after it started. [Emphasis supplied.] On the basis of the foregoing facts, I discredit Sweeney's testimony that he men- tioned the discharge of Dobbins for violating rule 40 only after Hoffman had indicated that the Company had decided already to discharge Dobbins. I also discredit all testimony in which it is claimed that no union representative asked or recommended that Dobbins be discharged. It was also agreed at the meeting that Hoffman and Mills would talk to the employees and Mills would state the Union's position and Hoffman would state the Company's position. About 5:30 p.m., Mills and Hoffman went through the plant and spoke to the employees. Hoffman reminded them about the contract and stated that it was applicable to all employees, nonunion as well as union. Mills explained that Mississippi was a right-to-work State, that the employees did not have to join the Union, that he would guarantee that there would be no intimidation, and that he hoped everyone "would get together and work as a happy family." 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About midnight on August 7, Dobbins' telephone rang at home . He answered it and although the speaker did not identify himself, Dobbins thought the speaker was Lambert because he was familiar with Lambert 's voice on the telephone. The voice said, "You s o b, you are fired." 3. Findings of fact concerning the decision to discharge Dobbins Having considered the demeanor of the witnesses and the record as a whole, including the many conflicts in the testimony of friendly witnesses, I cannot and do not credit the testimony of the company witnesses that the Company had decided, before the meeting with the Union on August 7, to discharge Dobbins. Moreover, their claim is not substantiated by the sequence of events. Thus, it is admitted that when Dobbins told the Company on August 5 that he needed protection and had a gun , he was not reminded about rule 40. On the con- trary, he was assured that the Company was not going to search the cars on the parking lot. Furthermore , Dobbins was not discharged on the morning of August 6 even though he admitted that he had a shotgun on the parking lot the night before. Instead, Hoffman and Busch laughed and jokingly told Sweeney that they had heard that he was the one who had the gun. In addition, since rule 40 uses the term "weapons," it was immaterial , under that rule, whether the gun was a pistol or a shotgun. In short , no investigation was needed to establish that Dobbins had violated the rule and , in fact, the investigation disclosed nothing about Dobbins' "guilt" which was not known previously. On the other hand, the investigation pretty well convinced Hoffman that Dobbins had not "pulled a pistol on" Sweeney , as claimed by the latter, but had stated only that he would use his shotgun if a mob was waiting for him down the road.53 Since Dobbins had admitted that morning that he had a shotgun , it seems probable that the real purpose of the investigation was to determine whether Dobbins was the "aggressor" or had indicated only that he would act in self-defense if he was attacked on his way home. If this was the purpose of the investigation, it helped rather than hurt Dobbins ' position for after the investigation was over, Hoffman clearly tended to accept Dobbins' version of the incident rather than the one given by Sweeney and McCool .54 (The Company also knew from previous conversations that Dobbins had reason to fear that Sweeney and perhaps others might try to "beat hell" out of him and it is reasonable to assume that the Company took the Union's threats into consideration when it debated what , if anything, it should do about Dobbins' part in the parking lot incident.) In addition , Sweeney's testimony discloses that Hoffman and Busch did not seem to take the incident very seriously on the morning of August 6 but, rather , tended to laugh and joke about it. Sweeney's testimony also discloses that neither Hoffman nor Busch was surprised when Dobbins told them that a check would reveal that there were guns in perhaps half of the cars. Be that as it may, the investigation again helped , rather than hurt, Dobbins for his statement was substantiated by Sweeney's witness McCool who told Attorney Lake that it was not uncommon for employees to have guns in their cars . Under these circumstances , Sweeney's untruth- ful "pistol pulling" charge suggests that he suspected that the Company would not discharge Dobbins if he was guilty of nothing more than having a gun in his car. If so, Sweeney was probably right for even after McCool's statement, the Company did not- check cars and did not remind the employees about rule 40 Moreover, Hoffman did not discharge Dobbins at the close of the interviews on the evening of August 6 although, at that point, the Company had the "definite proof" President Kalman allegedly wanted. (In fact, it is obvious that Dobbins would have given the Company a statement on the morning of August 6 similar to the one he gave the attorney that evening .) In addition , the danger of a walk-out by the employees would have been less at that point than it was the next morning for the 11 Cf. Sweeney's testimony that Hoffman stated at the August 6 meeting that "what you fellow do away from the plant is your own business but I don't want any fighting on company property." As brought out by counsel by Mad-States, Dobbins stated in his affidavit that " Sweeney , as well as any number of employees , including Foreman Cecil Bright and Zag Lagursky" were aware that he had carried a shotgun in his car for years However, I believe that Dobbins had the shotgun where he could get to it easily because of the previous threats and because he had one of his sons in the car Otherwise, it would have been in the trunk as was his rifle Ironically, Dobbins had bought the shotgun from International Representative Hubeit Mills If Hoffman had entertained any serious doubts he would surely have interviewed the other men Dobbins listed as in a position to support his statement. MID-STATES METAL PRODUCTS, INC. 895 second shift employees would not learn of his discharge until the next day whereas the next morning, his friends would quickly learn that he was called to the office and did not reappear.55 Nonetheless, it is undisputed that when Dobbins asked if he should come to work the next morning , Busch said, "Sure." It is also clear that in Hoffman 's mind, at least, the critical fact was not that Dobbins had a gun in his car but the fact that the incident was but another in the long series of clashes between Sweeney and Dobbins which had marked the "juris- dictional dispute" between the two factions. (Again, Hoffman knew that Sweeney and not Dobbins was responsible for the incident which admittedly occurred , accord- ing to all versions , because Sweeney went over to Dobbins and protested because the latter was getting signatures on his antiunion petition.) Finally, the contract did not require that Dobbins be discharged but only that the penalties set forth would "generally" be imposed . In short, the contract provided that each violation would be considered in the light of all of the facts as Union Representative Mills recognized when he agreed that the penalty was within the Company's discretion and that it could overlook a violation as long as it treated all employees equally. (As a matter of fact, Sweeney had clearly violated rule 30 by threatening to beat "hell " out of Dobbins and the contract permitted the Com- pany to discharge Sweeney as well as Dobbins. Under these circumstances, the Company surely realized that if it was to be consistent , it must discharge both Sweeney and Dobbins or neither of them.) These facts, in combination, cause me to believe that the Company probably had decided to ignore the parking lot incident as it had ignored previous "squabbles" between Sweeney and Dobbins.56 Sweeney, as well as Dobbins, was "subject to" discharge , in addition, Sweeney had made a false report of the incident and had precipitated the whole affair by going out of his way to "jump on" and "threaten" Dobbins because he was getting his petition signed.57 At the very least, I am con- vinced and find that the Company had made no decision with respect to Dobbins prior to the August 7 meeting. On the other hand, the Union had decided to get Dobbins discharged even before the parking lot incident . About August 1, Dobbins prepared a petition challenging the Union 's majority and requesting an election and he was getting new signatures on it everyday. Thus, Sweeney stated on August 4, i.e., the day before the gun incident , that he was "going in and get Mr. Hoffman to fire" Dobbins and Vice President Bowman warned Dobbins that same day that he "had better stop with the petition because Joe was going to get [him] fired" and that Sweeney "would find a way" to get Dobbins discharged . Indeed , as indicated above, the parking lot incident arose only because Sweeney and McCool saw Dobbins with a paper which employees were signing . And, even before Sweeney knew that Dobbins had a gun of any kind, he told Dobbins ". . . what have I told you about the petition ... I am going to get Mr. Hoffman to fire you...." Finally, in assessing Sweeney's motives and actions, I have given particular weight to the fact that he did not give the Company a truthful report of the incident but, rather , gave an account which was more likely to cause the Company to discharge Dobbins. Indisputably, Dobbins was a "thorn" in the Union's "flesh" and its representatives would have been less than human if they had ignored the opportunity to demand his discharge when he admittedly violated a rule for which the Company could, under the contract , discharge him. Moreover, by 1 p.m., on August 7, a good many hours had passed since the parking lot incident and the Company had given no indication that it was going to take any action against Dobbins notwithstanding Sweeney's statement on August 6 that Dobbins should be fired. It would therefore stretch credulity too far to believe that the Union would not press for Dobbins' discharge at the August 7 meeting. After all, it was the parking lot incident which 55 As set forth supra, Hoffman claimed that he did not discharge Dobbins on the morn- ing of August 7 because he feared a walkout by Dobbins' supporters. w That the Company was generally lax in enforcing the rules is disclosed by its failure to take effective action about the "rumors" of solicitation on company time and the threats reported by supervision, and its failure to talk to Sweeney and Lambert when Dobbins reported that Sweeney and Lambert had been drinking during the lunch hour. Moreover, there is no evidence that the Company objected when Sweeney went to the plant to weld pieces for his personal use although rule 23 ( class D-3-day layoff) prohibits "unauthorized use of Company property for private work." Nor did it enforce rule 19 (class B-1-day layoff) which prohibits "Abusive language to any employee . . " 57 Rule 20 (class B) prohibits the "making . . of false, vicious, or malicious state- ments concerning any employee . 11 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had prompted the Union to request the meeting and it would be unrealistic to assume that the Union would not and did not press for Dobbins' discharge. Accordingly, I conclude that Sweeney pointed out that Dobbins had violated the rule and that he, at least, insisted that Dobbins should be fired, as permitted by the contract, and that Hoffman finally agreed although Dobbins was a good worker and Hoffman "hated" to see anyone lose his job. As set forth infra, Dobbins left work early on August 7 to go to the dentist and was discharged early the next morning. It must be remembered that the only persons at the meeting were representatives of the two Respondents and that no one representing Dobbins was present, the fact that not even the most general minutes were kept of what was said and by whom, and Manager Hoffman's clearly false explanation for the absence of minutes, i.e., that Mrs. Moe was not present, indicate that neither party wanted a written record made of what went on at the meeting and that Hoffman was not telling the truth about at least one aspect of the meeting. Further evidence that the meeting would not withstand close scrutiny is provided by the conflicting testimony of friendly witnesses concerning what was discussed and decided. Thus, for example, Assistant Manager Busch insisted that the gun incident was not even mentioned while Manager Hoffman said that it was mentioned but that it was not really discussed and no questions were asked. However, the union witnesses agree that the gun incident was discussed at some length and it is clear from the testimony of Sweeney and Mills that the Union pointed out that Dobbins had violated the contract and that something should be done about it. All, except Sweeney, insist that the Company indicated that a decision had been or would be reached but did not indicate what its decision was. In my opinion, the conflicts in the testimony and the marked reluctance of most of the witnesses to testify fully and the failure of any one of them to testify truth- fully convince me that more was said than anyone admitted. Dobbins had violated a rule set forth in the contracet and the Union could make a valid request that he be discharged and the Company could validly agree if-but only if-the gun incident was the real reason for the request and the Company had no reason to believe that the Union's request was otherwise motivated. This being so, the unreliable and carefully general nature of most of the testimony causes me also to conclude that all were aware that something more was involved than a routine violation of rule 40. In short, for some reason, most of the witnesses clearly felt it would be unwise to admit that the subject of discharging Dobbins was even mentioned. And witnesses who are discussing the routine discharge of an employee for good cause are not so obviously reluctant to testify and do not disagree repeatedly among themselves about critical matters. In other words, the attitude of the witnesses indicates that the activity and not the gun incident and that the Union had seized upon the latter to give its request the appearance of validity. J. The events of August 8 About 7:30 a.m. on August 8, Hoffman discharged Dobbins, his stated reason being Dobbins' possession of a shotgun in his car on the parking lot the night of August 5. Dobbins reminded Hoffman that he had told Hoffman on August 4 that he had a shotgun in his car and that Hoffman had said he did not care what Dobbins had in his car, that he was not going to search cars on the parking lot. When Dobbins asked what Hoffman was going to do about Sweeney and the maintenance crew, Hoffman answered, "Well, Ray, there is so much going on out here I can't do nothing about it.,, 58 When Dobbins again protested that he was being fired and nothing was being done about the others, Hoffman replied, "That is all I have to say at this time." Hoffman then directed Dobbins' foreman, Beamer Smith, to lead Dobbins out through the front door. When Dobbins asked about his pencils and other personal possessions, he was told that Smith would send them to Dobbins.59 About 10 a.m.,, shortly after Dobbins was discharged, Hoffman and Plant Engineer Ozzie See met with Union President Sweeney, Johnnie Lambert, and International Representative Mills. According to Hoffman, he told the Union that Dobbins had 58 Hoffman admitted that he "ignored" Dobbins' question about what he was going to do about Sweeney and the maintenance crew w As pointed out above, Hoffman could have followed this same procedure when Dobbins admitted on the morning of August 6 that he had a shotgun in his car and again at the close of the investigation on the evening of that same day. As previously indicated, his failure to do so is further evidence that the decision to discharge Dobbins was not made until the meeting on August 7. MID-STATES METAL PRODUCTS, INC. 897 been discharged and told Lambert that if he got proof that Lambert was violating rule 30 (intimidation, threats, etc.) he would fire Lambert. Hoffman could not recall that Lambert said anything but he quoted Sweeney as having said that if Lambert was fired, the Union would process the discharge through the grievance procedure. Hoffman added that he "believed" that International Representative Mills said that if Dobbins asked the Union to process a grievance on his behalf, the Union would do so. Sweeney commented that if the Company had discharged both Dobbins and Lambert on Wednesday (August 4) for their argument that day, it would have been different.60 Sweeney and Lambert gave a considerably different version of Hoffman's remarks. According to them, Hoffman told Lambert that he was "terminated." When Lambert asked, "Why," Hoffman said it was because of the "row" between Dobbins and Lambert on August 4. Sweeney said that he did not think it was "fair" to terminate Lambert for something that happened 4 or 5 days earlier "when they waited until the morning-until they found a gun on" Dobbins to discharge him. Sweeney also said that if Lambert was fired, the Union would file a grievance and carry it as far as the Union could. Representative Mills spoke up to say that maybe an "agree- ment" could be reached that Lambert would merely be warned and that the next time Lambert was involved in anything like the Dobbins' argument, he would be discharged. Hoffman agreed and Lambert was given a warning. Lambert did not quote Mills as having said anything about processing a grievance if one was filed by Dobbins. Sweeney's testimony was similar to that of Lambert including his failure to mention any statement by Mills about processing a grievance if one was filed by Dobbins.61 Mills did not testify on the subject and See was not a witness. K. Analysis and conclusions 1. The Union's violation of Section 8(b) (1) (A) As stated supra, Mississippi is a right-to-work State and the contract did not and could not contain a union-security clause. It did provide for dues checkoff author- izations but also provided that they could be canceled and new ones could not be filed for 6 months. This meant that despite the certification of the Union, good-faith collective bargaining on the part of the Company, and the execution of an apparently satisfactory contract, labor peace, and stability did not follow. On the contrary, the antiunion-prounion fight continued for employees began withdrawing from the Union only a few weeks after the contract was signed. As a result, the Union naturally sought to obtain new members to replace the ones lost.62 Dobbins, who had been on the Union's negotiating committee, became the leader of the antiunion campaign. This was the source of all Dobbins' trouble and it is understandable that the Union's officers would not take kindly to Dobbins' activity and that they would express their opinion in words which were less than polite. However, they did not limit themselves to name calling.63 On April 27, 1964, Union President Sweeney went to Dobbins on company time, insisted that Dobbins could not withdraw from the Union, and when Dobbins dis- agreed, asked Dobbins to go across the road and fight it out. At a meeting with Assistant Manager Busch later that day, Dobbins said he would be glad to write withdrawal slips for other employees if asked and Sweeney told Dobbins he could beat the hell out of Dobbins. About the first of August, approximately 6 weeks before the end of the certification year, Dobbins prepared a petition which questioned the Union's majority and which requested an election to determine whether or not the Union represented a majority w For some reason, the Company conveniently ignored Sweeney 's part in the incident and in the parking lot fracas. el Sweeney did testify that Union Representative Mills later instructed the membership to process a grievance if one was filed by Dobbins. ez It is true that the Company was in part responsible for its troubles because it chose to ignore repeated rumors from supervision that both sides were carrying on their campaigns on company time. It made no investigation of the rumors and made no serious effort to stop the activity, but merely told both sides that they would have to stop. ^ The complaint does not allege that Sweeney's use of abusive language constituted a violation of th(! Act by the Union Paragraph 11 of the complaint charges that Sweeney's conduct constituted interference, restraint, and coercion by Mid-States, the theory being that Sweeney was a company supervisor 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the employees. During the lunch hour on August 4, Dobbins obtained some sig- natures on the petition and about 1:30 p .m. Sweeney went to Dobbins , told him he was going to get Manager Hoffman to fire Dobbins, and during the same conversation Sweeney warned Dobbins that he would beat the hell out of Dobbins and Lambert said that they would do it "now" if Dobbins would "go outside." About 2 p.m., Union Vice President Carson Bowman told Dobbins that he had "better stop with the petition" because Sweeney was going to get Dobbins fired and would find a way to do so. About 9 p.m . on August 5, Dobbins was on the parking lot during the lunch break getting signatures on the petition . Sweeney and McCool went over to Dobbins, and Sweeney commented about the number of "Company" men and asked Dobbins, "What did I tell you about the petition.... I am going to get Mr. Hoffman to fire you, and besides I am going to get some help and be waiting for you down the road." Dobbins replied that he had a shotgun in the car and would use it if Sweeney was "waiting on" Dobbins down the road with a "mob." On the basis of the foregoing facts, I conclude that a preponderance of the evi- dence supports the allegations of the complaint that Union President Sweeney threatened Dobbins with bodily injury and that Vice President Carson Bowman warned Dobbins that the Union would get him discharged if he did not "stop" circulating the petition . It follows, therefore , and I find that the Union thereby violated Section 8(b)(1)(A ) of the Act.64 In view of the above findings, it is unnecessary to determine whether the conduct of Johnnie Lambert is also attributable to the Union . Although Lambert served on the Union 's negotiating committee, that committee had completed its work. It is probable , however, that the employees generally regarded Lambert as a union officer or representative. More importantly, Lambert was closely associated with Union President Sweeney and his statements to Dobbins were made in the presence of Sweeney who not only did not disavow them but had made similar statements himself minutes earlier. Under these circumstances, I would conclude, if necessary , that Lambert's conduct could properly be attributed to the Union Cf Local 5581, United Mine Workers of America (Grundy Mining Company), 130 NLRB 1181, 1182. 2. The discharge of Dobbins in violation of Sections 8(b)(2) and ,(1)(A) and 8(a)(3), (2), and (1) of the Act The fact set forth supra, establish that Manager Hoffman and Assistant Manager Busch had known for months that Union President Sweeney and Dobbins were engaging in a bitter "jurisdictional dispute"; i.e., a dispute between the Union and the antiunion employees led by Dobbins. Dobbins had told the Company repeatedly that Sweeney was threatening him and on April 27 Sweeney told Dobbins in the presence of Assistant Manager Busch that he "could beat the hell out of" Dobbins if he prepared withdrawal slips. It is undisputed that all of the incidents, including the one on the parking lot, were begun by Sweeney and all were caused by Dobbins' antiunion activity . In addition , the day before the parking lot incident, the Union had warned Dobbins that it would get the Company to discharge Dobbins if he did not stop circulating the "decertification " petition. Moreover, as noted supra, when Sweeney reported the parking lot incident to management , he did not describe it truthfully but, instead , gave an account which was more likely to cause the Company to discharge Dobbins. Needless to say, the gun incident cannot be viewed in isolation but must be con- sidered in the light of what went before and what followed afterward . Indeed, no one would have known that Dobbins had a shotgun in his car if Sweeney had not gone some distance out of his way to "jump on" and threaten Dobbins because the latter was getting signatures on the petition. It was only when Sweeney warned Dobbins that he was going to get help and would be waiting for Dobbins down the road that Dobbins pointed to the gun and told Sweeney he would use it if Sweeney was waiting down the road with a "mob." In short , the gun incident was not a routine violation of rule 40 as Hoffman recognized when he did not act promptly on his own motion but "counseled" with President Kalman concerning the latest incident in the "jurisdictional dispute." Moreover, the contract does not make it mandatory for the Company to discharge an employee who violates the rule but provides only that the penalities set forth 14 Cf. Mavis Lane v. N.L.R.B., 1'86 F. 2d 671, 674 (CA. 10) ; Progressive Mine Workers of America, International Union ( Randolph Corporation) v. N L.R B., 1187 F 2d 298, 300- 301 (C.A. 7). MID-STATES METAL PRODUCTS, INC. 899 "will generally be imposed for each violation." In fact, International Representative Hubert Mills admitted that the Company has some discretion, even to the extent of overlooking a violation, "as long as each employee is treated equally." And Hoff- man told Dobbins on the morning of August 6 only that he was "subject to dis- ciplinary action up to and including discharge" depending on what the findings were after the investigation. [Emphasis supplied.] (As suggested supra, in view of Dob- bins' admission from the very beginning that he had a shotgun and because it was immaterial under rule 40 whether the "weapon" was a shotgun or a pistol, it may be that the real purpose of the investigation was to determine whether Dobbins actually "pulled a gun on" Sweeney or whether Dobbins had done nothing more than indicate that he had a gun and would use it if he was attacked. If so, the result of the investi- gation was more favorable to Dobbins, on this and other counts, than it was to Sweeney.) The absence of minutes of the meeting of August 7, the reluctance of most of the witnesses to admit that rule 40 and what to do about Dobbins' violation thereof were discussed in the company-union meeting on August 7, have been commented upon previously. Neither employers nor unions who are discussing merely the dis- charge of an employee for good cause only, i.e., the admitted violation of a rule, and who, therefore, have nothing to hide, are so obviously unwilling to testify about their deliberations. Moreover, those present at such a meeting will agree generally on what was said and done. In the instant case, however, there are numerous and critical differences between the testimony of the witnesses, particularly with respect to the meetings between the Company and the Union on August 7 and 8, although they are not adverse to each other. (See, for example, Manager Hoffman's testimony that Moe, the secretary, was not present at the August 7 meeting and Assistant Man- ager Busch's claim that the gun incident was not even mentioned.) As set forth supra, these and other facts have caused me to conclude that the decision to discharge Dobbins was reached at the meeting on August 7 and that it was reached only after Sweeney, at least, insisted that Dobbins be discharged for violating rule 40. It does not necessarily follow, however, that Dobbins' violation of the rule was the Union's sole or even primary reason for demanding that Dobbins be discharged or that the Company so believed when it agreed to comply with the Union's demand. Having considered all of the facts, including the Union's threats, well before the gun incident, to get the Company to discharge Dobbins, the fact that the threats were based on Dobbins' antiunion activity, particularly his circulation of the petition, I am convinced and find that the gun incident was but a pretext and that a preponder- ance of the evidence established that the real reason why the Union attempted to cause and did cause Mid-States to discharge Dobbins was the latter's efforts to destroy the Union's majority. The same facts, including the Company's knowledge of the Union's attitude toward Dobbins' activity, its knowledge that the gun incident was but another in a long series of union-provoked incidents, its recognition that the Dobbins' case presented the Company with a "jurisdictional dispute," its delay in discharging Dobbins even though he admittedly violated rule 40, I also conclude that the Company knew that the Union's real motive in demanding Dobbins' dis- charge was his antiunion activity and not his violation of rule 40. It follows, there- fore, and I find that the Respondent Company by its actions violated Section 8(a)(3), (2), and (1) of the Act and that the Respondent Union violated Section 8(b)(2) and (1) (A) of the Act.65 Cf. Emmadine Farms, Inc. (Milkdrivers and Dairy Employees Union, Local 338, International Brotherhood of Teamsters, etc.), 138 NLRB 1098. m I find no merit in the contention that the complaint should be dismissed because Dobbins did not file a grievance as he could have done under the contract. In a case in which the employee had been discharged because of his antiunion activity and at the Insistence of the Union's president, it would be unrealistic indeed to assume that the Union's grievance committee, of which the president is a member, could be relied upon to process the grievance fairly and vigorously. It is clear, of course, that the Company gave powerful assistance to the Union in its campaign to obtain and retain members by complying with the Union's request that Dobbins be discharged when it was aware that the real reason for the request was Dobbins' efforts to persuade employees to withdraw from the Union. It follows, therefore, that the Company violated Section 8(a) (2), as well as Section 8(a) (3) and (1), of the Act by discharging Dobbins Cf Aristocrat Inns of America, Inc., and Essex Inn Corporation, 146 NLRB 1599, 1600. 217-919-6 6-v o f 15 6-5 8 000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Company's violation of Section 8(a) (1) of the Act by prohibiting solicitation and distribution of literature on company property As set forth supra, each employee was given a copy of the contract which prohibits both unauthorized solicitation and unauthorized distribution of literature on com- pany "premises." Although the rules clearly limit union activity on company prop- erty even during nonworking time, the union negotiators were assured that the rule against solicitation, at least, would not be enforced with respect to nonwork time. It is equally clear, however, that the employees generally and the antiunion employ- ees in particular were not so informed and it must be assumed that at least some of them believed that the rules meant what they said. In fact, the testimony of Man- ager Hoffman discloses that even Second-Shift Superintendent Woods understood that discussion about the Union during lunch periods and breaks was prohibited for he reported to Manager Hoffman in the summer that such discussions were becoming a general thing. And Hoffman's instructions to Woods-to "turn his back and not see it"-recognized that such conversations were in fact prohibited. Moreover, when Sweeney and Dobbins were in Assistant Manager Busch's office on April, Busch told Dobbins that he could prepare union withdrawal slips if he did so "off Company property on his own time." Similarly, after the altercation between Sweeney and Dobbins on August 4, Manager Hoffman told Dobbins that there would be nothing but trouble if he kept on getting his antiunion petition signed during the lunch period and that he would have to stop it. At the same meeting, Hoffman told Dobbins that he had told Sweeney that there would be no more petition signing "inside the plant." Indeed, Manager Hoffman testified that he reminded Dobbins about the rule prohibiting solicitations and that there would be no more activity for or against the Union on company time or premises. Hoffman further testified that when Dobbins asked about the parking lot, he reminded Dobbins of the Company's "stand" during negotiations, that the Company's policy was still the same; i.e., that there would be no solicitation "on our premises." In Hoffman's words, he told Dobbins, "I want to warn you once again that solicitation on company time and on Company property" is prohibited. [Emphasis supplied.] It is thus clear that the Company's position throughout was that it had the right to prohibit solicitation on company property even during nonwork time and that it regarded the question of enforcement as a matter about which it could exercise its discretion. As a result, at times it chose not to-and at other times it chose to- enforce the rule as written. It is well esteablished that the promulgation and enforcement of a rule which limits union solicitation on company property violates Section 8(a)(1) of the Act, absent special circumstances not present here. N.L.R.B. v. Walton Manufacturing Company, 289 F. 2d 177 (C.A. 5), enfg. 126 NLRB 697, 698. Accordingly, I find that the Respondent Company violated Section 8(a) (1) of the Act by promulgating and at times enforcing rule 15 which prohibited employees from engaging in solicita- tion on company premises on nonworking time. Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621. The contract not only prohibited solicitation on company property at any time; is also prohibited distribution of literature on company property, outside as well as inside the plant. There is no evidence that the purpose of the rule was to avoid littering or to accomplish any other purpose which warrants the limitation of the employees' rights in this respect on nonworking areas. As a result, the no-distribution rule is not only presumptively invalid insofar as it applies to nonworking areas but Respondent has offered no evidence to rebut that presumption. Accordingly, I find that the Respondent Company violated Section 8(a)(1) by, promulgating a rule which limited the employees' right to distribute literature on nonworking time in nonworking areas. Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621-622.66 66I find no merit in the Company's contention that rules 15 and 16 did not apply to union activity because section 5.7 of the contract prohibits union activity, other than the processing of grievances , on company time or premises . This argument must fail primarily because the rules are much broader than section 5.7 since they apply to anti- union activity as well as the prounion activity. Moreover, there is no evidence that the employees were ever informed that the rules were not applicable to activity for or against the Union. Indeed, it was assumed throughout the hearing that rule 15, at least, applied to solicitation for or against the union, the Company's defense being that the union negotiators were told that it would not be enforced during nonworlctime. In addi- tion, at times, the Company sought to enforce the rule against both prounion and anti- MID-STATES METAL PRODUCTS, INC. 901 I find no merit in the Company's contention that the -rules are valid because they were incorporated into the contract as the result of collective bargaining.67 In the Board's view, the parties cannot deprive employees of their statutory rights by agree- ing to do so via a collective-bargaining contract. Although this view has been rejected by two courts, I am aware of no decision in which the Board has reversed its position and I am therefore bound by it.ss Rejection of the Board's view would mean that private parties can, by contract, defeat the congressional policies expressed in the Act. Surely, such was not the intention of Congress in encouraging the parties to bargain collectively and to incorporate any agreement reached into a signed contract. III. THE REMEDY It having been found that Respondents Mid-States and Local 738 have engaged in certain unfair labor practices, my Recommended Order shall require that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Because the clearly coercive and discriminatory treatment of Dobbins by Respond- ents goes to the very heart of the Act and indicates a purpose to defeat the exercise by employees of rights guaranteed in Section 7 of the Act, I am convinced that a cease and desist order coextensive with the guarantees of Section 7 is warranted and necessary in this case to prevent other unfair labor practices potentially related to those found here. I shall therefore recommend that Respondents be required to cease and desist from in any other manner infringing upon the employees' Section 7 rights. My recommended order shall require that Mid-States offer Dobbins immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges; that Local 738 request Mid- States, in writing, to reinstate Dobbins; and that Mid-States and Local 738, jointly and severally, make Dobbins whole for any and all losses he may have suffered by reason of the discrimination against him. Any backpay found to be due Dobbins shall be computed in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Local 738's liability shall terminate 5 days after it furnishes Mid-States with a written statement requesting Mid-States to reinstate Dobbins. CONCLUSIONS OF LAW 1. Joseph M. Sweeney is not a supervisor within the meaning of Section 2(11) of the Act. 2. By threatening employee Dobbins with physical violence and with discharge, all because of his antiunion activity, Respondent Union 738 violated Section 8(b) (1) (A) of the Act. 3 By promulgating and enforcing a rule which limited solicitation for or against the Union on company property on nonworking time and by promulgating a rule which limited the distribution of literature for or against the Union in nonworking areas on nonworking time, Respondent Mid-States violated Section 8(a)(1) of the Act. 4. By discharging Willard Ray Dobbins at the request of Respondent Local 738, Respondent Mid-States violated Section 8(a)(3), (2), and (1) of the Act. 5. By attempting to cause and by causing Respondent Mid-States to discharge Willard Ray Dobbins, Respondent Local 738 violated Section 8(b)(2) and (1)(A) of the Act. union activity. Under these circumstances , It must be concluded that the employees, as did Superintendent Woods, understood that discussions about the Union were prohibited on company property even during nonworktime. In addition, some of the employees knew that Sweeney had threatened to get Dobbins discharged because he was circulating his petition during the lunch period and on the parking lot and it was reasonable to assume that some of them believed, as has been found, that Dobbins' activity was the real reason he was discharged. 67 As noted supra, the contention that the clause was the result of collective bargain- ing is in conflict with the statement of Manager Hoffman in his prehearing affidavit that the shop rules were "drawn" by President Kalman and "myself." 68 Cf. N.L.R B. v. Gale Products, Division of Outboard Marine Corp, 337 F. 2d 390 (C A. 7), denying enforcement in 142 NLRB 1246 ; Armco Steel Corp. v. N.L.R B , 344 F. 2d 621 (C A 6), denying enforcement 148 NLRB 1179 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The unfair labor practices set forth in paragraphs 2, 3, 4, and 5 above are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. 7. Respondent Mid-States did not violate any section of the Act by engaging in con- duct other than that set forth in paragraph 3 and 4 above. RECOMMENDED ORDER Upon the basis of the entire record , the findings of fact, and the conclusions of law, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that- A. The Respondent , Mid-States Metal Products , Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from- (a) Promulgating and enforcing a rule which prohibits solicitation for or against the Union on company premises on nonworktime and promulgating a rule which prohibits distribution of literature for or against the Union on nonwork areas during nonworktime. (b) Encouraging membership in Local 738, International Chemical Workers Union, AFL-CIO, by discharging, refusing to reinstate , or in any other manner dis- criminating in regard to the hire or tenure of employment of employees, or any term or condition of employment. (c) In any other manner interfering with , restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act (a) Offer Willard Ray Dobbins immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and, jointly and severally with the Respondent Union, make him whole for all losses he may have suffered by reason of the discrimination against him in the manner set forth in the section of the Decision entitled "The Remedy." Notify Willard Ray Dobbins if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training Act, as amended , after discharge from the Armed Forces. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all payroll records , social security payment records, time- cards, personnel records and reports, and all other records useful . and necessary to enable the Board to determine the amount of backpay due Dobbins and the right to reinstatement under the terms of this Recommended Order. (c) Post at its plant in Greenville , Mississippi, copies of the attached notice marked "Appendix A." 69 [Board 's Appendix A substituted for Trial Examiner 's Appendix A.] Copies of said notice , to be furnished by the Regional Director for Region 26, shall, after being duly signed by Respondent Mid-States , be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent Mid-States to insure that said notices are not altered , defaced, or covered by any other material. (d) Post at the same places and under the same conditions set forth in (c) above, and as soon as they are forwarded by the Regional Director, copies of the Respond- ent Union's notice marked "Appendix B." (e) Furnish to said Regional Director signed copies of the notice marked "Appen- dix A" for posting by Respondent Union as hereinafter directed. (f) Notify the Regional Director for Region 26, in writing , within 20 days from the receipt of this Decision , what steps it has taken to comply therewith.70 e9 In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order" will be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order." 101n the event that this Recommended Order be adopted by the Board , this provision shall be modified to read "Notify said Regional Director , in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply therewith " M & M OLDSMOBILE, INC. 903 It is further recommended that the complaint with respect to Mid-States be dismissed in all other respects. B. The Respondent, Local 738, International Chemical Workers Union, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening employees with physical violence and discharge because they engage in antiunion activity. (b) Causing or attempting to cause Mid-States Metal Products, Inc., to discharge, refuse to reinstate, or otherwise discriminate against any of its employees in violation of Section 8(a)(3) of the Act. (c) In any other manner restraining and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Notify Willard Ray Dobbins and Mid-States Metal Products, Inc., in writing, that it withdraws its objections to Dobbins' employment and requests his reinstate- ment. Notify Willard Ray Dobbins if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training Act, as amended, after dis- charge from the Armed Forces. (b) Jointly and severally with Respondent Mid-States make Willard Ray Dobbins whole for all losses he may have suffered by reason of the discrimination against him, in the manner set forth in the section of the Decision entitled "The Remedy." (c) Post at its offices, copies of the attached notice marked "Appendix B." 71 [Board's Appendix B substituted for Trial Examiner's Appendix B.] Copies of said notice, to be furnished by the Regional Director for Region 26, shall, after being duly signed by the Respondent Union's representative, be posted immediately upon receipt thereof, and be maintained by the Respondent Union for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by other material. (d) Post at the same places and under the same conditions as set forth in (c) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Mid-States Metal Products, Inc.'s notice marked "Appendix A." (e) Forward signed copies of Appendix B to the Regional Director for posting by Respondent Mid-States Metal Products, Inc., at its Greenville, Mississippi, plant. (f) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply therewith.72 71 See footnote 69, supra. 72 See footnote 70, supra. M & M Oldsmobile, Inc. and Local 259, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO. Case No. f9-CA-82. January 17, 1966 DECISION AND ORDER On September 9, 1965, Trial Examiner David S. Davidson issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, Respondent, General Counsel, and the Charging Party filed exceptions to the Trial Examiner's Decision together with supporting briefs. 156 NLRB No. 91.