Standard Brands, Inc.

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clinton Corn Processing Company, a Division of Standard Brands, Incorporated and Charles E. Smith. Case 38-CA-1034 November 15, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On June 29, 1971, Trial Examiner Benjamin A. Theeman issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief; General Counsel filed limited exceptions and 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs, and the entire record in this case,' and finds merit in Respondent's exceptions. Accordingly, we shall dismiss the complaint for reasons set forth hereinafter. Charles E. Smith, Charging Party herein, was employed by Clinton Corn Processing Company (hereinafter CCPC), the Respondent herein, at its Clinton, Iowa, plant from September 1955 to June 1967. Smith started work with CCPC as a general laborer, became an electrician apprentice a year later, and became a journeyman electrician in Respon- dent's electrical department in 1959. Smith continued in that capacity until he left the Company in 1967. From the beginning of his employment with Respon- dent, Smith was a member of the American Federa- tion of Grain Millers Local No. 6 (hereinafter Local 6), which represented all of the Respondent's hourly and piecework employees in its production and mechanical work for purposes of collective bargain- ing. Smith was active in Local 6 while a CCPC employee. Early in his employment he became a department steward in the corn elevator department. During his electrician apprenticeship, he became department steward for the electrical department. In 1964 Smith became a Local 6 trustee. In 1965 Smith was elected as a member of Local 6's Labor Relations Committee, a plantwide committee which acts to settle grievances and contractual disputes. In the early part of 1966, Smith became the chairman of the Labor Relations Committee, a position he held until he left the Company. In the early part of 1967, the business agent of Local 6 resigned his position and, until a full- 1 Respondent has requested oral argument This request is hereby denied because the record, the exceptions, and the briefs adequately time business agent could be hired, Smith assumed the business agent's position on a part-time basis. Smith worked 2-1/2 days as a business agent and 2-1/2 days in the plant as an electrician. In June 1967, Smith voluntarily resigned from CCPC, explaining his resignation as a matter of taking an opportunity where he could make more money. He became an electrician in the building trades. After Smith left CCPC, he became a member of Local 145, Interna- tional Brotherhood of Electrical Workers. At the time of the hearing, Smith was president of the AFL-CIO Clinton Labor Congress having served as vice president until January 1971. The Labor Congress disseminates AFL-CIO information to Local 6. When the contract between Local 6 and CCPC expired in 1968, negotiations were entered into. During the 1968 negotiations a work stoppage occurred and lasted about 53 days. Employees did not report to work. Local 6 did not establish a picket line. CCPC outside contractors and their employees continued to work on their jobs on CCPC premises. In the fall of 1968 after the contract had been renegotiat- ed and CCPC was operating again, Harold LeVin, manager of engineering, issued a verbal order forbidding Smith to be allowed on the CCPC premises as an employee of an outside contractor. This order was transmitted orally to CCPC management includ- ing Paul Cagley. The reasons for this order are the basic issue in this proceeding. After Smith left the employment of CCPC, he was on the premises of CCPC on three separate occasions while in the employ of electrical contractors. On or about September 18, 1970, Smith was employed by Robbins Electric of Clinton, Iowa, at the CCPC premises. Robbins was involved in a project on a syrup dryer in the sugar house. Smith worked for Robbins on the CCPC premises until September 30, 1970. On this date Production Manager Leonard Lewis reported to Manager of Project Engineering Paul Cagley that Smith was on the company premises. According to Cagley, on the basis of that report, he contacted Jim Harris, manager of Robbins Electric, that afternoon. Cagley told Harris that he found out that Smith was working for Robbins in the plant and that he wanted Smith removed from the premises. Cagley testified at the hearing that he consulted with no one as to his decision to have Smith removed from Respondent's premises. According to Cagley, the basis of his decision was a direct order by LeVin, an immediate supervisor who had previously left Res- pondent's employ. The order was that Smith was not to be allowed on the CCPC premises. According to Cagley, the order was issued sometime in the fall of 1968 during the work stoppage caused by the present the issues and the positions of the parties. 194 NLRB No. 32 CLINTON CORN PROCESSING CO. 185 expiration of Respondent's contract with Local 6. After Smith left CCPC employ, he talked to about six of the CCPC journeymen electricians about the advantages of working for the building trades rather than for CCPC. Some of the conversations were by telephone, while others occurred on the CCPC premises. The record shows that CCPC supervisors were aware of this solicitation of CCPC electricians while it was occurring in 1967 and 1968.2 On October 30, 1970, Charles E. Smith filed a charge alleging a violation of Section 8(a)(1) of the National Labor Relations Act by Clinton Corn Processing Company. The complaint was issued on February 26, 1971, and alleged that Respondent interfered with, restrained, and coerced "its employ- ees" by maintaining and enforcing "a rule or policy prohibiting Charles E. Smith from working on its premises while in the employ of a company doing business with Respondent," and on September 30, 1970, "attempted to cause and did cause Robbins Electrical Co.. . . to discharge Charles E. Smith from Robbins' project" at Respondent's premises, because of such "union activities on behalf of Local 6, Grain Millers and/or concerted activity protected by the Act," in violation of Section 8(a)(1).3 Rejecting a contention by the General Counsel, the Trial Examiner concluded that the record was free from any evidence of union hostility on the part of CCPC or discriminatory action directed at Smith. The Trial Examiner found and concluded that Smith's activities on behalf of Local 6 while he was employed by the Respondent did not motivate Respondent's action as alleged in the complaint. The Trial Examin- er further found that there was no evidence in the record to show that CCPC had attempted to get, or requested, Robbins to terminate Smith's employment. Accordingly, the Trial Examiner recommended that the allegation of causing Smith's discharge contained in the complaint be dismissed. Respondent maintained at the hearing and in its brief to the Trial Examiner that it directed Robbins not to permit Smith on its premises in 1970 as an employee or superintendent of Robbins, solely because of Smith's actions in attempting to induce electricians to leave the Respondent's employ. In this regard the Trial Examiner concluded that Respon- dent's directive barring Smith from its premises was predicated in part on Smith's actions since leaving CCPC and attempting to get CCPC electrician journeymen to leave and to obtain work in the building trades. The Trial Examiner further conclud- 2 A number of the discussions by Smith occurred during the work stoppage of 1968. One of the electricians was named Johns. In September 1968, while the stoppage was still in effect, Johns left the employ of CCPC to accept a job with Smith who was then general foreman with Langrehr Electrical Company. The Trial Examiner concluded that Smith played an important role in Johns' transfer of employment particularly in fight of his ed that such conduct by Smith was not a protected activity, but a valid reason for the order keeping Smith off the CCPC premises. In addition, however, although neither alleged in the complaint nor proven by the General Counsel at the hearing, the Trial Examiner found that Smith encouraged and attempted to induce outside contrac- tors not to work on CCPC's premises during the 53- day work stoppage in 1968. The Trial Examiner concluded that such conduct "is a concerted activity protected by Section 7 of the Act," which "may clearly be considered an attempt by Smith to assist Local 6, a labor organization, in its efforts to negotiate a new contract with CCPC." The Trial Examiner further concluded that such conduct was "a substan- tial motivating factor for the order and under those circumstances the issuance of the order and the action taken by CCPC thereunder constitute a violation of Section 8(a)(1) of the Act." The Trial Examiner recommended an order and notice, requiring Respon- dent to notify its employees and contractors to whom Respondent's ban was directed, that it will not impose, maintain, or enforce any rule "prohibiting employees of its contractors from working on CPPC premises because employees have engaged in concert- ed activities protected by the Act," and also recom- mended that Respondent pay Smith backpay "for any loss of earnings he may have suffered by reason of CCPC orders ...." The Trial Examiner found that the record did not show Smith's activities succeeded in inducing outside contractors except as contained in Cagley's affidavit to the Board. Cagley testified that LeVin told him in the fall of 1968 that he had received reports that Smith was attempting to persuade Respondent's employees to "leave our employ" and directed him "not to allow Mr. Smith in our plant." No other reason for the directive was mentioned by LeVin at the hearing. The Trial Examiner, however, found that LeVin told Cagley that there were two bases for the order barring Smith from Respondent's premises, one being that during the work stoppage Smith had been trying to induce outside contractors not to work on CCPC's premises. The Trial Examiner relied solely on Cagley's pretrial affidavit which was uncorroborated by any evidence, was contradicted by Cagley's own testimo- ny, and was expressly denied by LeVin, who made the decision to issue the directive. This affidavit was introduced by the General Counsel solely for "impeachment purposes." Contrary to the Trial Examiner, we believe that all the relevant evidence statement that Langrehr was "always looking for skilled electricians." 3 In response to Respondent's motion for more definite statement and the Trial Examiner's order therein, General Counsel specified that the "concerted activities" referred to in the complaint involved certain union activities on behalf of Local 6. Respondent's answer denied the commission of any unfair labor practices. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proves that Respondent barred Smith from its premises only because of his unprotected conduct in inducing Respondent's employees to quit. The record does not show that during the work stoppage of 1968 Smith actually induced or tried to induce the contractors and their employees to stay away from CCPC premises. This showing is contained in Cag- ley's statement to the Board as allegedly told him by LeVin. This pretrial affidavit was introduced by the General Counsel for impeachment purposes only, and we will not consider it as substantive or affirmative evidence. There is, therefore, no substantive evidence here as to the facts asserted in the affidavit, and the General Counsel has not proven his case by a preponderance of the evidence. Accordingly, we find, contrary to the Trial Examiner, that in the circum- stances of this case Respondent did not violate Section 8(a)(1) of the Act. We shall therefore dismiss the complaint.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 4 The Trial Examiner concluded that Smith had taken a strong racist position during the 1966 bargaining session. We do not think that this conclusion by the Trial Examiner is supported by the evidence. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Trial Examiner: The complaint as amended' alleges that Clinton Corn Processing Compa- ny (CCPC or Respondent) since April 30, 1970, has prohibited Smith from working on its premises while in the employ of a company doing business with CCPC and on September 30, 1970, caused Robbins Electrical Co. (Robbins), an employer doing business with CCPC, to discharge Smith because of Smith's union activities; that said actions were and are in violation of Sections 8(a)(l) and 2(6) and (7) of the National Labor Relations Act, as amended 29 U.S.C. Sec. 151, et seq. (the Act). Respondent' in its answer denied committing the unfair labor practices. Pursuant to due notice, a hearing was held before me on April 8, 1971, in Clinton, Iowa. All parties appeared and were represented by counsel. Each was given full opportu- nity to participate, adduce evidence, examine and cross- examine witnesses, and argue orally. The General Counsel and CCPC submitted briefs that have been read and considered. Upon the record in the case and from my observation of the witnesses, I make the following: i The complaint issued on February 26, 1971, was amended at the hearing. The charge was filed by Smith on October 30, 1970. FINDINGS OF FACT I. THE ISSUES The issues are adequately stated in the statement of the case, above. H. BUSINESS OF RESPONDENT (CCPC) Respondent, a Delaware corporation, owns and operates a place of business in Clinton, Iowa, for the manufacture and sale of products processed from corn. During the 12 months preceding the hearing, CCPC sold and shipped from the Clinton plant finished products valued in excess of $50,000 to points outside the State of Iowa. Also, CCPC during the same period, purchased " and caused to be transferred and delivered to its Clinton plant goods and materials valued in excess of $50,000 which were transport- ed to the Clinton plant directly from States other than Iowa. It is found, as admitted by CCPC, that its operations meet the Board's jurisdictional standards and that CCPC is and has been an employer affecting commerce within the meaning of Section 2(6) and (7) of the Act. III. THE LABOR ORGANIZATIONS Local 6, American Federation of Grain Millers (AFL-CIO), and Local 145, International Brotherhood of Electrical Workers (AFL-CIO), each is, and has been a labor organization within the meaning of Section 2(5) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background CCPC employs between 1,500 and 1,600 employees in its plant in Clinton, Iowa. Since at least 1955, under collective- bargaining agreements with CCPC, Local 6 has represented the production and maintenance employees in a unit of approximately 1,000 employees. The agreements set out "Standards of Apprenticeship for the various trades employed in the plant" including electricians. The program recognizes that definite training is necessary "in order to achieve the, highest skill" in the trades and sets forth minimum requirements that the apprentice must meet to become a journeyman. The program covers a term of "not less than 8000 hours" (approximately 4 years) with hourly pay graduating from $3.56 to $4.28 per hour.2 The apprenticeship system is carried out under general direction of an employee of the Company with the advice of a joint advisory committee including union representatives. The Company has a considerable investment in the apprentice- ship program and desires that after completion the journeyman will remain in CCPC's employ. 2 As set forth in the current agreement dated August 1, 1970. CLINTON CORN PROCESSING CO. B. Smith Becomes a Journeyman Electrician at CCPC and Leaves To Accept Higher Pay in the Construction Industry Smith started with CCPC as a general laborer in September 1955. After working in the corn elevator department, he became an electrician apprentice and entered the apprenticeship training program in July 1959. In January '1963 he became a journeyman electrician: In June 1967, he voluntarily left the employ of CCPC to accept a job as general foreman with Langrehr Electrical Company,3 a contractor in the building trades in Clinton. Smith's reason for the change was that a journeyman electrician in the building trades could and did receive higher wages than a journeyman with CCPC 4 C. Smith Is Active in Local 6 While a CCPC Employee The first position Smith held with Local 6 was department steward in the corn elevator department .5 His function was to process grievances. Next, he became steward in the electrical department performing similar functions. While he was shop steward in the electrical department, a dispute arose between Local 6 and CCPC over the question of contracting work out on a part-time basis. The consent of the steward was necessary. Smith met with LeVin, manager of engineering, and they failed to resolve the question. The events of this meeting as testified to by Smith were as follows: I would say that there was something that Mr. LeVin felt that should be contracted out and I was just as opposed to it and I felt it was work that our people can do and so I refused to sign an agreement that would allow this work to be contracted out. And Mr. LeVin sent for me and said I should appear in his office, and I did. We had quite a discussion on it. I think Mr. LeVin was pretty unhappy that I wouldn't agree. A. It wasn't really part of the contract. It was something that was agreed to by the union and company just on part-time basis or just during this particular phase of construction. * * * * * And because this was tying into the existing work, it was under the contract stating that maintenance people would take care of it, so in order to allow the company to contract out maintenance people work we had to agree in a department saying well, we don't have time to do this work and so it's all right with us if the company contracts it out. In 1964, he became a union trustee whose duties were to go over the treasurer's report. In 1965, Smith became a member of the four-man labor relations committee of Local 6. Its function was to settle grievances and disputes, and 3 The record is corrected to reflect this spelling of the name wherever it appears. 4 Smith testified that he was never criticized while at CCPC ; and that he enjoyed his work at CCPC and did not leave because he was unhappy. 187 interpret the labor contract. The committee held weekly meetings. Also the committee met and dealt with CCPC's personnel manager, production manager, superintendent of the mechanical division, and other company officials on grievances and other disputes. Smith continued with the committee until he left CCPC in 1967. For awhile in 1966 he was chairman of the committees Early in 1967, Smith became business agent for Local 6. As such with the permission of CCPC he worked 2-1/2 days per week for CCPC. As a Local 6 official and member of the negotiating committee Smith was a member of the five-man bargaining team that participated in contract negotiations. In 1966, the negotiations with CCPC continued from July through September, during which time a strike of 2 weeks' duration occurred. Also, some of the 1966 negotiation sessions generated considerable heat and rancor because of racist comments made by Smith. (See sec. IV, D, infra.) D. Smith's Personality The General Counsel through character witnesses showed that Smith was levelheaded, had the capacity to perform outstandingly in any job, was a dedicated union officer, and was aggressive. As to the last characteristic one of the witnesses testified that Smith's aggressive nature gave rise to unpleasant situations. The witness had taken part in the 1968 negotiations between Local 6 and CCPC. He related that Smith's name came up early in the 1968 negotiations because of Smith's behavior in the 1966 negotiations. In pertinent part, the witness showed: During the course of the negotiations one day Mr. Wilden and Mr. Lewis got into a heated discussion on some aspect of the proposals, ... and Mr. Lewis made the remark that this particular year he wasn't going to stand for being abused or any slurs made to his nationality or ethnic background. . . . After the tempers got cooled down Mr. Wallace and Mr. Lewis explained that during the negotiations of 1966 the tactics that were used by the union, namely one of the committee members for the union, Charles Smith, had caused the company . . . quite a bit of problem ... . And they accused Charles Smith of most of the problems that took place that particular year. Q. Thereafter did Local 6 take any action in,regards to this situation? A. Yeah, it started to appear to us as though there were some ill feelings being held over from the `66 negotiations and so either the next day or something close to it we made a formal apology to the company stating that we weren't interested in the negotiations of `66 and also that as far as we were concerned what the committee of two Irishmen, an Italian, and a Jew on our committee, we are in sort of a glass house as far as anybody else's nationality, and we attempted to clear the air and proceed with the negotiations of `68 and not get back to any of the things that happened during the `66. 5 In addition to union officials , there were approximately 50 union stewards functioning at CCPC. 6 In this capacity he acted as union business agent during the latter's absence. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Smith Is Active in Local 145 and the Clinton Labor Congress After Leaving CCPC Immediately after leaving CCPC Smith became a member of Local 145. At the time of the hearing, Smith was president of the Clinton Labor Congress having been vice president until January 1971. The Labor Congress dissemi- nated AFL-CIO information to Local 6. Representatives of Local 6 attended meetings of the Congress where Smith communicated with them. F. After Smith Left CCPC Employ He Talked , With CCPC Electricians About Leaving CCPC To Work in the Building Trades In June 1967, Smith arranged for his employment with Langrehr Electric and was on the payroll of that company for 1 week before he left CCPC. After leaving CCPC, he talked to about six of the CCPC journeyman electricians about the advantages of working for the building trades rather than for CCPC. These conversations continued for a period of approximately 18 months. Some of the conversa- tions were by telephone, but others occurred on the CCPC premises.7 The record shows that CCPC supervisors were aware of Smith's solicitation of CCPC electricians while it was occurring in 1967 and 1968. A number of the discussions occurred during the work stoppage of 1968.8 One of the electricians was named Johns. In September 1968 while the stoppage was still in effect Johns left the employ of CCPC to accept a job with Langrehr.9 Smith was then general foreman for the latter concern. It is not difficult to conclude that Smith played an important role in Johns' transfer of employment particularly in light of his statement that Langhrer was "always looking for skilled electricians. "10 G. CCPC Issues an Order Forbidding Smith To Work on its Premises The contract between Local 6 and CCPC expired in 1968. As stated above negotiations were entered into. During the 1968 negotiations, a work stoppage occurred that lasted about 53 days. Employees did not report to work. Local 6 did not establish a picket line. CCPC's outside contractors and their employees did work on their jobs on CCPC premises. In the fall of 1968 after the contract had been renegotiated and CCPC was operating again, Harold Levin, manager of engineering, issued 'a verbal order forbidding Smith to be allowed on the CCPC premises as an employee of an outside contractor. This order was transmitted orally to the CCPC management including 7 Smith testified. Q. You might have talked to them on the Clinton Corn premises? A. May have. Q. During their working hours? A. It's possible, yes Q. At any rate, you are fairly clear its about a half a dozen individuals that you talked to? A Give or take two or three. 8 See first paragraph next section 9 Smith testified. Q . . do you know Bobby Johns? A. Yes, I do. Paul Cagley, manager of project engineering. Levin told Cagley that there were two bases for the order: Levin had received reports that Smith had (1) been attempting to induce CCPC electricians to leave CCPC; and (2) that during the stoppage Smith had been "trying to convince contractors personally to leave [the CCPC] plant." The order was still effective at the time of the hearing. . Cagley in an affidavit given to the Board prior to this hearing made the statement contained in quotes above, concerning Smith's attempts to convince contractors. It appears twice in the affidavit. Cagley in the affidavit states that was what Levin said when Levin gave him the order. On the stand, Cagley testified that subsequent to giving the affidavit he checked with Levin and learned that Levin "does not necessarily remember that this was a point." Cagley testified further that at the time he made the affidavit it was his understanding of the conversation with Levin that the order was based on the two points. Levin testified for Respondent. He stated he had received reports concerning Smith in 1968 after the strike was over. His testimony was: A. It was reported to several members of my staff that Mr. Smith was working on the premises and had during that period of time attempted to persuade several members of the electrical shop to leave the company and work for contractors or in the construc- tion industry on the premises. Q. Now, did you have any subsequent conversation with Mr. Cagley about this subject? A. Yes, based on the reports that I received it was my decision that it would be to our advantage for Mr. Smith not to be on the property, and I so directed Mr. Cagley to take that action. Q. Do you recall any reports about-about Mr. Smith's activity during the work stoppage with respect to attempting to get contractors not to come into the plant and work? A. I do not. Q. . . . You have mentioned the reports you have received about Mr. Smith. Did any other factors besides these reports play a part in your decision? A. They did not. On the basis of the foregoing, the record as a whole, and observation of the witnesses, the statements contained in Cagley's affidavit on this subject are credited. Accordingly it is found that when Levin gave Cagley the reasons for the order to keep Smith off the CCPC premises in 1968 one of them was a statement to the effect that Smith during the Q. Then he terminated his employment with Clinton Corn at approximately September of 1968; is that correct? A. Well, I am not sure, but I suppose if you have got it there, yes. Q. And who did he go to work for? A. Langhrer Electric. Q. I see. And you talked to Bobby John about the advantages and opportunities in the building and construction industry; didn't you? A. Yes. 10 Smith mentioned this fact to a number of other CCPC employees also. CLINTON CORN PROCESSING CO. 189 stoppage had been "encouraging outside contractors not to work for [CCPC]. "11 H. Smith's Employers Are Asked by CCPC To Keep Smith off CCPC Property Smith continued working as a foreman for Langrehr until early 1969. In the fall of 1968, Langrehr was asked to bid on a lighting project in one of the CCPC buildings. As foreman, Smith went on the CCPC premises to assist in making the bid where he spent approximately 2 hours. The job was awarded to Langrehr. About 2 weeks - later, Langrehr told Smith that he had received a call from Larson, the CCPC electrical engineer and was told that he should not bring Smith on the CCPC premises. No reason was given. Smith was not assigned to the CCPC job. Langrehr assigned him as foreman on another job.12 In May or June 1970, Smith was working for Capital Electric. As an employee of Capital, Smith went on the premises of CCPC to complete a project to terminate "some high voltage lines." He was on the CCPC premises for 2 weeks. The record contains no evidence that CCPC knew Smith was on the premises ,13 or that anything occurred because of Smith's presence. In September 1970, Smith was working for Robbins Electric. That company had a job to do on a syrup dryer on the CCPC premises. Smith as an employee of Robbins with Gil Thomson, his supervisor, went on CCPC premises on September 18, 1970. Smith worked on the project until September 30, 1970, when he was told by Harris, owner of Robbins Electric, that CCPC had requested that Smith "was to be taken off the Clinton premises." As shown below, though not requested to do so by CCPC, Harris discharged Smith. The record contains no evidence that since September 30, 1970, Smith has been on the CCPC premises ; nor does it contain any evidence of action by CCPC to keep Smith off its premises other than the continued existence of the verbal order in CCPC.14 I. The Events as They Occurred on September 30, 1970 On September 30, 1970, Lewis, project manager for CCPC, reported to Cagley that Smith was on the CCPC premises as an employee of Robbins working under Gil Thomson. Cagley, acting on his own initiative under the verbal order that had been issued by LeVin in 1968, called Harris, owner of Robbins, and asked him to remove Smith. He told Harris it did not have to be done immediately, "just not to have him come in . . . the next morning." About 2:30 p.m., Thomson told Smith he had just received a call from Harris, Robbins' manager, that Smith was to report with his tools at the company storage shed at 4 p.m. that day. No reason was given to Smith. 11 The record does not show Smith's activities to induce outside contractors except as is contained in Cagley's statements. As shown hereafter, it is not considered essential that the activities be determined 12 In 1969, Langrehr procured another CCPCjob At that time, Cagley informed Langrehr that Smith could not be his superintendent. 13 Contractors working on CCPC premises report their employees to the company office and a badge number is issued to the employee. 14 At the time of the hearing, Smith was employed by an outside At 4 p.m., Harris, Thomson, and Smith were at the tool shed. Harris stated that at the request of CCPC Smith "was to be taken off the Clinton premises." Harris told Smith that he had his paycheck through that day and that he was going to have to let him go; that it was not because of his work that he was removing him; and that for any further information, Smith would have to talk to Cagley. Smith with his tools and lunch bucket went to Cagley's office. The latter had left for the day. Smith went home and about 5 p.m. called Cagley. Smith wanted to know the reason for the action; told Cagley it could affect his employment; and if it was because of his union activities there could be a problem.15 Cagley told Smith that he had received a call from a superior telling him to get Smith off the CCPC premises; that he- did not know the reasons why but he would check; and that if Smith called him back the next evening he would let him know. About 5 p.m., October 1, 1970, Smith called Cagley. Cagley told him that he had spoken to Lewis who had stated that it was something Smith "had done or said sometime prior to this, possibly 2 years prior, while [Smith] was working for another electrical contractor"; that neither Lewis nor Cagley could find out anything, "only that it was on orders of Mr. Harold LeVin, manager of engineering." Smith was told nothing more then or since. After that day he did no work for Robbins. Robbins had jobs going elsewhere on September 30, but, rather than transfer electricians from one of these jobs to CCPC and substitute Smith, Robbins let Smith go. There is no evidence in the record to show that CCPC had attempted to get or requested Robbins to terminate Smith's employment. Smith concedes that, when he spoke to Cagley, Harris, or Thomson, none indicated that CCPC had requested his discharge. On the basis of the foregoing and the record as a whole, it is found that CCPC did not cause Robbins to discharge Smith as alleged in the complaint. The General Counsel appears' to be in accord with this finding in that he does not argue in his brief that Smith's discharge was caused by CCPC. Accordingly, it is recommended that the allegation of discharge contained in the complaint be dismissed. J. CCPC Gave Two Reasons for Keeping Smith off its Premises-One a Protected Activity under the Act, the Other Not Upon the foregoing facts and on the record as a whole, it is found that CCPC in 1968 issued a verbal order that is still effective under which Smith as an employee of an outside contractor was not to be allowed on CCPC premises; that the order was transmitted to at least two outside contractors who employed Smith and who as a result of said order discontinued to -use Smith as an employee on CCPC premises. The order was predicated on two factors (1) that Smith encouraged and attempted to induce outside contractor. Since leaving the CCPC in June 1967, Smith was employed as an electrician by approximately 13 electrical contractors including Langrehr, Capital, and Robbins. Smith worked as a foreman and as an employee for the contractors 15 There is considerable doubt that Smith said "if it was because of his union activities, etc." If it was said no significance is placed on the statement. 190 DECISIONS OF, NATIONAL LA13OR RELATIONS BOARD contractors not to work on CCPC's premises during the 53- day work stoppage in 1968; (2) that since leaving CCPC Smith advised, recommended, or induced CCPC electrician journeymen to leave CCPC and to obtain work in the building trades.16 Thus, it is evident that there existed at the time of the issuance of the order on September 30, a "mixed motive" situation. Factor (1) is a concerted activity protected by the Act; factor (2) is not a protected activity but a valid basis for the order. As shown hereafter, factor (1) is a substantial, motivating factor for the order and under those circumstances the issuance of the order and the action taken by CCPC thereunder constitute a violation of Section 8(a)(1) of the Act. Discussion and Conclusions There is little doubt that factor (1) was a substantial or motivating factor leading to the issuance of the order. CCPC was aware of Smith's relations to the electricians prior to the 1968 work stoppage. CCPC made no move, however, to prevent Smith's actions until after the work stoppage when the information relative to his actions to the outside contractors was known. It may be that Smith continued talking to the electricians during the stoppage. He succeeded in getting Johns to leave. These may have been contributing factors. Nevertheless, special emphasis was given to the factor of the assistance to Local 6 and the solicitation of the outside contractors. This leaves little doubt that factor (1) was at least one substantial, or motivating reason for the issuance of the order. The existence of other valid reasons does not whitewash CCPC's discriminatory action.17 The record does not show that during the work stoppage in 1968 Smith actually induced or tried to induce the contractors and their employees to stay away from the CCPC premises. This fact is contained in Cagley's statement to the Board as told to him by LeVin. It is not essential that this fact actually occurred. What is essential is the fact that LeVin ordered Smith to be kept off CCPC premises because he understood Smith had engaged in such activities. The conduct attributable to Smith (i.e. inducing and encouraging subcontractors of CCPC from working at CCPC while Local 6 was engaged in a strike) may clearly be 16 The General Counsel contends erroneously that a third reason was Smith's union activities while he was an employee of CCPC. The record does not support the General Counsel's contention The record is free of any evidence of union hostility on the part of CCPC as it is free of any discriminatory action directed at Smith with his long history of union activity while a CCPC employee or any other steward or Local 6 official. That Smith was not mistreated by CCPC is shown among other things by the latter's consent that Smith work 2-1/2 days per week as a business agent for Local 6 and 2-1/2 days as a CCPC employee. The General Counsel refers specifically to the meeting between LeVin and Smith when the latter was a union steward in the electrical department as an instance of union activity that gave rise to animosity against Smith. The meeting occurred prior to 1964 and is too remote in tune to carry weight or be significant in 1968 or 1970. The record indicates no more than that the event occurred and LeVin was displeased; no subsequent action by LeVin is shown that has any connection with the meeting. The General Counsel also asserts that antiunion bias was generated against Smith because of the heated 1966 bargaining session. If an anti-Smith feeling resulted, it was not due to union activity, but to the strong racist position taken by Smith during the 1966 session. The heat engendered then and which emerged again in 1968 resulted from Smith's racial prejudice, not his union activities. The 1968 negotiators judged the action when they decided they considered an attempt by Smith to assist Local 6, a labor organization, in its efforts to negotiate a new contract with CCPC. As such it constitutes a concerted activity protected by Section 7 of the Act.18 The CCPC order keeping Smith off its premises as an employee of another employer deprives Smith of a means of employment for a reason proscribed by the Act. Such an'order interferes with and is restraining and coercive of the rights of employees guaranteed by the Act and as a result is violative of Section 8(a)(1) of the Act.19 It follows that CCPC's request to Robbins that Smith be kept off the premises was also violative of the Act. The authorities are clear that where an employee is deprived of employment because of participation in concerted activities the Act is violated. Cf. Phelps Dodge Corp. v. N.LR.B., 313 U.S. 177; N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9. The latter involved a discharge for engaging in concerted activity. The proscription contained in the Act is broad enough to include a refusal to permit Smith to work on CCPC premises because he engaged in a protected activity even though as an employee of a contractor and not of CCPC. See Fabric Services, Inc., supra. V. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, I recommend that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found, and in any like or related conduct, and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Clinton Corti Processing Company, a Division of Standard Brands, Incorporated, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 6, American Federation of Grain Millers (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to allow Charles E. Smith to work on its premises as an employee of one of CCPC contractors because CCPC understood that Smith, in order to assist wished to avoid discussion of racist talk and get back to union matters. 17 CCPC did not care to lose an employee who had gone through the program because (1) it had invested time and money in making him a journeyman; and (2) the program is competitive-there are more applicants than selectees and the selection of one precludes another from entering the program. Thus, Smith's actions in attempting to get the journeyman to leave was adverse to the interests of CCPC. Such actions constitute a valid reason for the order keeping Smith off the CCPC premises. Nothing contained in this decision is intended to, or shall be construed ' as, (a) eondonmg Smith's actions while on CCPC premises of inducing, encouraging; or soliciting CCPC electricians to leave CCPC; or (b) preventing CCPC from ordering Smith off its premises should he resume his actions while on CCPC premises of inducing, encouraging, or soliciting CCPC electricians to leave CCPC. 18 The language of the Act is broad enough to include the activity attributed to Smith by CCPC. Note the discussion on "group action" in Mushroom Transportation Co. v. NLRB., 330 F.2d 683, 685 (C.A. 3, 1964). 19 This violation exists even though Smith was not then an employee of CCPC. The protection granted by Section 7 of the Act extends to employees generally and is not restricted to a proximate employer- employee relationship . See Fabric Services, Inc, 190 NLRB No. 105. CLINTON CORN PROCESSING CO. 191 Local 6 in its negotiations with CCPC, encouraged, induced, or requested CCPC contractors not to work on CCPC premises, CCPC has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By ordering Robbins Electric to remove Smith from CCPC premises as an employee of Robbins and instructing Robbins not to employ Smith on jobs on CCPC premises, CCPC has engaged in and is engaging in unfair labor practices, within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]