Crown Central Petroleum Corp.

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crown Central Petroleum Corporation and Oil, Chemical & Atomic Workers International Union, AFL-CIO. Case 23-CA-3026 June 30, 1969 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND ZAGORIA On December 10, 1968, Trial Examiner Herman Tocker issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter the General Counsel and the Charging Party filed exceptions to the Decision and supporting briefs, and the Respondent filed a brief in support of the Decision and a reply brief to the General Counsel's and Charging Party's exceptions and supporting briefs. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and finds merit in the exceptions. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent with the summary and analysis of the case set forth below. The essential facts in this case are as follows: On May 9, 1968, a grievance meeting took place between Respondent and the Workmen's Committee of the Union.' Employee Gilliam was the chairman of this committee and had served in this capacity since 1963. One of the grievances taken up was that of employee Harris, also a committeeman, with respect to some overtime he had worked in the latter part of March 1968. According to Harris, he had been "ordered" to work overtime by Respondent Supervisor Manly, while protesting that under the collective-bargaining agreement an employee could only be "requested" to work overtime and could refuse, and he did not wish to work the overtime. Nevertheless, Harris had worked the overtime under protest, and then had filed the grievance. According to Manly, he had only "requested" Harris to work overtime, and he denied that he had "ordered" Harris to do so. Harris and Gilliam accused Manly of lying on this score, or at least intimated as much, and told Manly that he would pay for this earthly sin in the hereafter. The meeting was then adjourned. On the next day, May 10, 1968, Respondent issued a letter of reprimand to Harris, and a letter of reprimand and suspension for 1 day to Gilliam, for their remarks to Manly at the May 9 grievance meeting. As recognized initially by the Trial Examiner in his Decision, under applicable Board precedents, such as Bettcher Manufacturing Corporation, N. P. Nelson Iron Works, Inc., his own decision in Huttig Sash & Door Company, Inc., and Thor Power Tool Company,' it would normally be found that this is a clear case of protected conduct during a grievance proceeding, and that Respondent wrongfully disciplined both Harris and Gilliam for such conduct.' However, the Trial Examiner found that there were special circumstances here which call for a different conclusion. The first special circumstance relied on by the Trial Examiner is that he perceived of no distinction between an employee being requested by his supervisor to do something and being ordered to do it, that thus the seed of this case was ill born, and the case is of a "sport" or "maverick" nature. We need not pass on this question, however, because, as recognized by the Trial Examiner, the alleged unfair labor practice with which we are concerned is not whether Harris was wrongfully ordered to work, but whether Harris and Gilliam were wrongfully disciplined for protected activity at the grievance meeting. The second special circumstance relied on by the Trial Examiner is that there was no justification for the statements made by Harris and Gilliam to Manly. In support, the Trial Examiner relied on his conclusions that the remarks in issue were "coldly" intentional, that Manly was a mild-appearing person, that Gilliam had no reason to accuse Manly of lying without personal knowledge of the facts, and that the other employees in the plant were surprised and shocked when they learned of the statements. We consider these conclusions, if correct, to be unimportant on the issue of whether the statements were protected. The issue is not whether the statements by Harris and Gilliam were justified by either the Trial Examiner's standards or ours, but rather whether these statements were so opprobrious as to remove them from the otherwise protected nature of the grievance meeting. We find that they were not. Thus, in Bettcher Manufacturing, supra, the Board held in a similar situation that an employee was engaged in protected activity when in the course of bargaining he intimated that his employer was a "liar" and "juggled" his books to convey a false picture of the company's financial status. In so holding, the Board made the following pertinent observations with respect to the censorship of such remarks: 'The Workmen's Committee for the handling of employee grievances is provided for by the contract between Respondent and the Union. '76 NLRB 526, 80 NLRB 788, 154 NLRB 1567, and 148 NLRB 1379, respectively See also Socony Mobil Oil Company, Inc, 153 NLRB 1244, enfd as modified 357 F 2d 662 (C.A 2) See also the Trial Examiner's explication at the hearing of the general 177 NLRB No. 29 CROWN CENTRAL PETROLEUM CORP. 323 A frank, and not always complimentary, exchange of views must be expected and permitted the negotiators if collective bargaining is to be natural rather than stilted. The negotiators must be free not only to put forth demands and counterdemands, but also to debate and challenge the statements of one another without censorship, even if, in the course of debate, the veracity of one of the participants occasionally is brought into question . If an employer were free to discharge an individual employee because he resented a statement made by that employee during a bargaining conference, either one of two undesirable results would follow: collective bargaining would cease to be between equals (an employee having no parallel method of retaliation), or employees would hesitate ever to participate personally in bargaining negotiations, leaving such matters entirely to their representatives. [Emphasis supplied.] These observations are equally applicable to the situation here of a grievance meeting between management and employee representatives, particularly since the primary issue in the grievance was the veracity of management. The last special circumstance relied on by the Trial Examiner is that there is no evidence of any union animus by Respondent in this case or in the many years of Respondent' s relations with the Union. Such affirmative evidence of union animus might be necessary to support a violation of Section 8(a)(3),' but it is not necessary to support a violation of Section 8(a)(1). Accordingly, while Respondent's disciplining of Harris and Gilliam for engaging in the collective- bargaining process itself may have been inherently discriminatory,' we find it unnecessary to resolve that issue, for we find that in any event such disciplining constituted interference, principles applicable to this type of case , which he sets forth in his Decision. 'We find no merit in Respondent's contention that, because Manly was a plant supervisor and not a member of Respondent's industrial relations department negotiating team at the grievance meeting , Manly could not be subjected to the remarks in question lest it infringe upon his supervisory disciplinary authority over the employees As indicated by the Trial Examiner at the hearing , the "master-servant" relationship does not carry over into a grievance meeting, but there is instead at such a meeting only company advocates on the one side and union advocates on the other side engaged as opposing parties in litigation . Accordingly, with respect to the grievance in issue, Manly was at the grievance meeting , not in the role of a "master," but as a company advocate and one of the parties involved in the litigation , and in fact one of the parties directly involved in the grievance itself As such, he was subject to the same free exchange of remarks as any other company representative, and his supervisory disciplinary authority was not involved . To hold otherwise would improperly interfere with such a free exchange , and might indeed leave no free exchange at all in the countless situtations of smaller employers with no industrial relations department , where only supervisors represent the employer in grievance meetings. 'But see N L.R.B v. Great Dane Trailer, Inc, 388 U .S. 26, and N L.R.B v. Fleetwood Trailer Co., 389 U.S 375, where the Supreme Court held that some conduct may be inherently discriminatory , and not require affirmative evidence of antiunion motivation. 'See In 5, supra. restraint, and coercion with respect to Section 7 rights, and thus violated Section 8(a)(1). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical & Atomic Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent interfered with , restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent unlawfully issued a letter of reprimand to employee Harris, and a letter of reprimand and suspension for 1 day to employee Gilliam, we shall order Respondent to revoke and expunge from its records such reprimands; and to make employee Gilliam whole for any loss of pay suffered by him as a result of his 1-day suspension, with interest at the rate of 6 percent per annum computed quarterly in accordance with F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Crown Central Petroleum Corporation, Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Issuing letters of reprimand to, or suspending, employees because of their protected participation in grievance meetings. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Revoke and expunge from its records the letters of reprimand issued to George S. Harris and Jack R. Gilliam on May 10, 1968, and make Gilliam whole for any loss of earnings he may have suffered as a result of his 1-day suspension on May 13, 1968, in the manner set forth in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security records, 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. (c) Post at its place of business at Houston, Texas, copies of the attached notice marked "Appendix."' Copies of such notice, on forms provided by the Regional Director for Region 23, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. 'In the event that the Board's Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." APPENDIX 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 issue letters of reprimand to, or suspend, employees because of their protected participation in grievance meetings. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them in Section 7 of the Act. WE WILL revoke and expunge from our records the letters of reprimand issued to George S. Harris and Jack R. Gilliam on May 10, 1968, and WE WILL make George R. Gilliam whole for any loss of pay he may have suffered as a result of his 1-day suspension on May 13, 1968, with interest thereon at the rate of 6 percent per annum. Dated By CROWN 'CENTRAL PETROLEUM CORPORATION (Employer) (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, 6617 Federal Office Bulding, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-765-0404. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN TOCKER, Trial Examinar: This case, with all parties represented, came on to be heard before me in Houston, Texas, August 14-15, 1968. The charge was filed by Oil, Chemical & Atomic Workers International Union, AFL-CIO, May 16, 1968, and duly served on the Respondent, Crown Central Petroleum Corportation. The General Counsel, by complaint dated June 20, duly served on that day, instituted this proceeding alleging that Respondent on or about May 10 had reprimanded one employee and had reprimanded and suspended for one day another employee because of conduct in which they had engaged while participating in protected activities. Respondent appeared by Counsel and filed its answer June 28, admitting these disciplinary actions but denying that they had been imposed in violation of law . Except for its denials of violation of law , it admitted all other allegations set forth in the complaint. The Issue During the course of a general grievance meeting having to do with a number of matters of concern to the employees, there came up for consideration one grievance arising out of conflicting views as to the mandatory or nonmandatory nature of overtime provisions in the parties' collective-bargaining agreement. One of the members of the Union's Workmen's Committee was involved personally. Regardless of the actual words used, for the purpose of stating the issue it may be said generally that George S . Harris, the aggrieved employee and member of the Workmen's Committee, called Respondent's Assistant Superintendent of Maintenance, Fred Manly, a liar and reminded him that after death and in the hereafter he would be held to account for his sins and that Jack R. Gilliam, another member of the committee, if not in the exact words at least in words of like nature, repeated the accusation and the reference to the hereafter. Counsel supporting the complaint contends that this having been a meeting called for the purpose of discussing grievances, attended by members of the Workmen's Committee on the one side and by management representatives on the other, and the words spoken having been connected directly with a grievance being processed, the two employees uttering them were engaged in a protected activity and consequently immune from disciplinary action . Respondent, on the other hand, contends that the utterance of these words was rank insubordination which became known to the employees in its refinery, thereby impairing Manly's efficacy as a supervisor and, not only were not protected for these reasons but more importantly , were not seized upon by it as a pretext for interfering with, restraining, or coercing these employees in the exercise of their protected rights or for the purpose of discouraging activities on behalf of the Union. This then is the issue: Under the particular facts of this case and the circumstances surrounding the utterance of the remarks, are Respondent's reprimand of one of these employees and reprimand plus one-day suspension of the other to be regarded as having been made (to quote from the complaint) "[B]ecause employees Harris and Gilliam joined, or assisted the Union and/or sought to bargain collectively through representatives of their own choosing CROWN CENTRAL PETROLEUM CORP. 325 and/or engaged in other concerted activities for the purposes of collective-bargaining or mutual aid or protection." Prior to and again at the opening of the hearing, Respondent made a motion for an order to dismiss or in the alternative to stay proceedings pending arbitration. That motion was denied and the hearing proceeded on the merits. Now that I have heard the entire case on the merits, it may be that the wiser course here would have been to reserve decision on the motion and leave the way open for alternate disposition in an arbitration proceeding in accordance with the contract . Inasmuch as the motion was denied and I am now in a position to dispose of the case on the merits, I see no reason to reconsider my prior denial and for that reason adhere to it. Now, after carefully considering all the testimony given at the hearing, relying in great part on my observation of the witnesses during the time that they gave that testimony, and carefully considering the oral argument made by Counsel supporting the complaint at the conclusion of the hearing and the posthearing brief submitted on behalf of the Respondent by its attorneys, and upon the whole record , the following are my FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND JURISDICTION Crown Central Petroleum Corporation is, and at all times material herein has been, a corporation duly organized and existing under and by virtue of the laws of the State of Maryland. It operates numerous facilities, one of them being a refinery in Houston , Texas, the only location involved in this proceeding . It is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Labor Management Relations Act, as amended . The National Labor Relations Board has jurisdiction of this proceeding and of the Respondent. 11. THE LABOR ORGANIZATION INVOLVED Oil, Chemical & Atomic Workers International Union, AFL-CIO-CLC, Local 4-227, in this proceeding called Oil, Chemical & Atomic Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Sometime prior to May 9 , employee George S. Harris became embroiled in a discussion or disagreement as to whether Assistant Superintendent of Maintenance Fred Manly could require him to work overtime within the meaning of the collective-bargaining agreement between the Union and Respondent . Harris took the position that overtime was not mandatory but was optional with the employee. Manly took the position that he could require Harris to work overtime. The discussion or disagreement culminated in Harris' working overtime but there is disagreement as to the manner in which this came about. On the part of Harris it is contended that , toward the end of the discussion, Manly first merely requested him to work overtime but, following a maneuver to crystalize the situation, Manly ordered him to work overtime . Manly, on the other hand, took the position that at no time did he actually order Harris to work overtime - he merely asked him to work overtime. The distinction sought to be brought out by the two versions is, in my opinion, hardly worth being called that. I perceive no distinction between an employee being asked by his supervisor to do something and being ordered to do it. The employee should do it in either case . The request does not have to be labeled as an order . The request is an order. Thus, the seed of this case was illborn . (One should not overlook a distinction which might arise between an inquiry whether an employee is willing to work overtime and a request that he do so. This is not the situation with which we are confronted here.) The alleged unfair practice with which we are concerned is not whether Harris wrongfully was ordered to work but whether Harris and Gilliam were within the protection of the law when they called Manly a liar and warned him of the consequences he would suffer in the hereafter when Manly insisted that he had requested Harris to work overtime while Harris contended that Manly had ordered him to work overtime. In any event, during the course of the meeting, which I repeat was not concerned solely with this particular overtime question , almost everything involved in this case happened and it happened in just a few minutes. There are several versions of what happened- Harris' version: Harris addressed Manly saying, "Mr. Manly, do you deny telling me at that time that you ordered me to work overtime today, ten hours Saturday and ten hours Sunday?" Manly replied, "I didn't order you to work overtime " Harris told him, "Mr. Manly, I have known you a long time, and I have worked with you and I have grown to respect you One of these days you are going to die and you are going to go to hell just as sure as you are sitting there." Following the meeting chairman's admonition that if any more remarks like that were made, the meeting would be adjourned, Committee Member Gilliam said, in response to the meeting chairman's reply to his protest, "Well, we don't have to get to talking about a man's hereafter." Gilliam then said, "Well, we have always been taught if we don't do right while we are on this earth we are going to go to hell when we die." Manly then asked Gilliam, "Do you think I am lying?" Gilliam answered, "Fred, I don't know if you are lying or not, but I know you are capable of it, and I have learned lots of things here in the last few months " The meeting was then adjourned. Committeeman Gilliam 's version: The matter of the overtime was brought up and Gilliam "asked [Manly] if he ordered Mr. Harris to work overtime and under what provision of the contract " There was some discussion about the clause in the contract and the manner in which it came to be inserted. This was followed by some reference to what had happened at the time the overtime i..sue first arose. Gilliam then addressed Manly and said, "Well, now, you are saying that you did not order George to work overtime but at the same time you are telling me you have the impression that you have a right to." Then, following some remarks by Harris, Harris addressed Manly directly and said, "Mr. Manly, do you remember me asking you if I was -- had a choice of working overtime in this meeting," to which Manly replied that "he didn't order him to work overtime." Harris then inquired of Manly whether he remembered another committee member "telling [him] that if [he] wanted [Harris ] to work to order [Harris] to do so." Manly's answer was, "No, I do not." This was followed by additional conversation which was sought to be concluded by Gilliam with a remark to Harris to the effect that Manly had told his side of the story and that was all that they had asked him. At this point, "George [Harris] kind of put his head down toward the table [and said] Mr. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manly, I have known you for a long time. I have respected you But I am afraid when you die you are going to hell." Gilliam made the reservation that these words might not have been the exact words but they were almost exact These words were followed by the meeting chairman's statement that if there was going to be any more language of that sort, the meeting would be adjourned. This prompted Gilliam to tell the chairman, "Now, Harry, you know and I know that we have all been taught that if we commit a sin on earth and if we don't pay for it we are going to pay in the hereafter." Manly then, in view of this remark, turned to Gilliam and said, "Are you calling me a liar" Gilliam replied, "No, Mr Manly, I am not calling you a liar, but, I think you are." The meeting was then adjourned. Union Committeeman Garrett 's version: Following a first session in the morning, the grievance meeting was resumed after lunch and the meeting chairman addressed Gilliam telling him "that the ball belonged to him." Gilliam asked Manly "if he had instructed Mr. Harris to work overtime under threat of penalty if he didn't, and Mr Manly denied that he had so stated that to Mr. Harris [claiming] that he had requested him to work overtime that he did not threaten him with disciplinary action if he refused to work, that they had asked him to work overtime . . Mr Harris told him that he had threatened him with disciplinary action." Then, after some "bantering" back and forth between Harris and Manly, Mr. Harris made the statement, " `the old man is getting old,' referring to Mr. Manly, and that, 'one of these days he is going to die and he is going to have to account for his lies or for his lying,' . ." This was followed by the meeting chairman's statement that the meeting would be adjourned if such talking continued. This prompted Gilliam to tell the committee chairman, "If you are telling us that we cannot tell a man that he is lying when he is lying, I am telling you now the man is lying." The meeting then was adjourned. Union Committeeman Bradley's version: After Manly came into the meeting Harris asked him "[I]f he had asked him to - if he told him that he must work overtime on this ten-hour schedule they had been working, and Mr Manly said, 'No, George, I didn't tell you you had to work I asked you if you would work ' " The question was repeated by Harris and Manly again said, "George, I said that I asked you to work. I didn't tell you that you had to work " George [Harris] said, `Well, the old man is getting old and when he dies he is going to have to answer for his lying ' " Then, following the committee chairman's remonstrance that he would not tolerate this sort of talk, Gilliam told him, "Well, Harry, you mean we can't tell a man he is lying when we know he is lying? I am telling you I think the man is lying." This caused the committee chairman to close the meeting The foregoing are Union Committee Members' versions. The Respondent' s witnesses' versions were not too far different except that wherever the Union's witnesses had said that the words "lie" or "lying" were used the adjective "damn" or the imprecation "G-d damn" prefixed the word "lie." It would not be two difficult, in casual reliance on cases such as Bettcher Manufacturing Corporation , 76 NLRB 526, N. P. Nelson Iron Works, Inc., 80 NLRB 788, Mate Holt Company, 161 NLRB 1606, or my own decision in Huttig Sash & Door Company, Inc., 154 NLRB 1567, or even Thor Power Tool Company, 148 NLRB 1379, to say that this is a clear case of protected conduct during a grievance proceeding and that Respondent wrongfully reprimanded both Harris and Gilliam and suspended the latter for one day . Indeed, at the conclusion of the hearing, in suggesting to Respondent' s attorney what I would like him to cover fully in his brief, I said: I don't think any employee ever should talk to any supervisor in an insubordinate manner , and I think that he ought to be disciplined or fired if he does. But when there is a grievance proceeding we have advocates and parties, and on one side you have the union representatives who are advocates, and on the other side you have company representatives , who are advocates. At this particular time they are advocates . They are not masters and servants . They are advocates. As far as the parties are concerned , you have one party against another party. You don't have a master-servant relationship . You have a litigating relationship. So that the ordinary rules of master and servant do not apply because it's not a master -servant relationship there. It's a relationship of litigation in adversary proceedings. On the one hand, the advocacy, on the other hand the accused and the party who is doing the accusing. Not master and servant. The company does have disciplinary powers, but its disciplinary powers should be exercised only in connection with the exercise of the master -servant relationship, not with respect to events which may occur during litigations , whether they be grievance litigations or Foard litigations or any other kind of litigations. If the party who is not an employee engaged in the most reprehensible conduct, the employer couldn't fire him because he is not an employee . The employer might go to court and sue him for liable [libel] or something like that or malicious prosecution. Just because a man happens to be an employee doesn't change his status. He is still a party or is still an advocate. And this is the thing you have got to overcome in my mind or [in] the cases to which you [will] refer you have got to overcome. I have concluded that the matter is not as simple as all that after pondering over this entire situation in the long time which has elapsed since the conclusion of the hearing . I am in total agreement with the remark of the Trial Examiner in Thor Power Tool Company (above, at 1387): It is not surprising that no case can be found squarely controlling the result here, for it is the essence of these "balancing" cases that the balance must be struck in each case with an eye to the special facts presented by it. What are the special circumstances relied on by the parties here, and what weight should be accorded them? There are special circumstances here which have a bearing upon what decision should be made. As we are requested so frequently to do, I have examined, upon due notice to all counsel , Respondent's labor history before this Board . All that I have been able to find out about it throughout the entire life of the Board is an alleged 8(2) case combined with a representation case in which the unlawful labor practice charge was dismissed, 24 NLRB 217, and a representation Case, 57 NLRB 13, following which the Union , Charging Party here, was certified in February 1945, for Respondent's Pasadena plant. I assume that during all the intervening years it has been the bargaining representative of CROWN CENTRAL PETROLEUM CORP. Respondent's employees there . Moreover, during all the intervening years not one unfair labor practice charge has been decided against Respondent and, for all I know, none has been filed. Moreover, it appears that in accordance with the collective-bargaining agreement between Respondent and the Union, there is a long-established Workmen's Committee which represents the employees "in collective bargaining and grievance negotiations with the Company." Employees serving on this committee are "compensated by the Company for all scheduled working time lost due to" collective-bargaining and grievance negotiations. Jack Gilliam , one of the Union witnesses in this proceeding , first went on the committee in 1955. Others on the committee have served for varying times. There is no suggestion that any member ever has been brought to task or been the victim of discrimination or retaliation by reason of his serving on the committee. Grievances have been heard by a permanent arbritrator. The Union' s own attorney , on at least one occasion, thought it wise to caution participants in such a proceeding against intemperate conduct . While it is entirely possible that such cautioning was a tactic to make a good impression on the arbitrator, it appears nevertheless that restraint , as opposed to belligerency, was the accepted and recognized desirable pattern for relations between the Company and its employees. The particular meeting at which the alleged offensive conduct occurred had been conducted calmly and without heat or rancor . There was no marked excitement. The accusations of lying and promises of retribution in the hereafter are claimed by the Union witnesses to have been made coolly and calmly with deliberation . If that is so, then the remarks must have been coldly intentional. I had the opportunity to observe Fred Manly, the supervisor, who had been accused of lying and warned to beware of what would happen to him in the hereafter. He seemed to me to be a mild -mannered, soft-spoken, quite elderly man, far from robust in appearance . Regardless of what Harris' view of whether the word "order" or "request" had been used , there was no reason because of the manner in which this meeting was being conducted or the historical pattern of previous meetings to call this mild-appearing person a liar and to remind him that he had not long to live and would pay for his sins in the hereafter . Additionally, there was no reason for Gilliam, who had no personal knowledge of the facts, to echo Harris and, without such personal knowledge , himself to accuse Manly of having lied. Calling Fred Manly a liar seems indeed to have been surprising and shocking to employees in the plant who, from the way I understood the testimony on hearing it given by the witnesses who testified in this connection, had regarded him with great respect and had learned of the accusation with astonishment and awe. There just does not appear to have been anywhere in this case or in all 23 years of Respondent 's relations with the Union and its employees, any union animus. In fact, it appears to the contrary. Certainly Gilliam and Harris 327 (and presumably all other Workmen's Committee Members) were not disciplined because they participated in grievance proceedings or in the proceeding out of which this case arose. Equally certain it is that the disciplinary action taken against them was not pretextual for the purpose of interfering with their functions as members of the Workmen's Committee or any other right protected under the law. And so, regardless of the usual rule which should not be permitted to become a per se rule and my views as expressed in Huttig Sach & Door (above) and the remarks I made at the close of the hearing (quoted above), this case appears to be a "sport" or of a maverick nature. Its disposition should be limited solely to its own peculiar facts and I hardly would deem it suitable as a precedent for weakening or undermining the rule of Bettcher (above) or Nelson Ironworks (above). This particular case just is not one which requires a finding that there has been any interference with any protected right or any conduct intended and calculated to discourage membership in the Union. Now, therefore, upon the whole record, the following are my Conclusion of Law 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical & Atomic Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not discipline employees Harris and Gilliam because they "joined, or assisted the Union and/or sought to bargain collectively through representatives of their own choosing and/or engaged in other concerted activities for the purposes of collective bargaining or mutual aid or protection." 4. Respondent did not interfere with , restrain, or coerce its employees "in the exercise of rights guaranteed in Section 7 of the Act and (did not) engage in, (nor is it) engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(l) and 2 (6) and (7) of the Act." 5. Respondent did not discriminate and is not discriminating "in regard to hire or tenure or terms or conditions of employment of its employees" and consequently did not engage in "unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and Section 2(6) and (7) of the Act." Upon the foregoing findings and conclusions , and the entire record, and being of the opinion that the Respondent is not engaged in and is not engaging in the unfair labor practices alleged in the complaint, the following is my recommended ORDER It is hereby ordered that the complaint in this case be, and the same hereby is, dismissed in all respects.