Evans Products Co.

MONON TRAILER, INC. Monon Trailer, Inc., Division of U.S. Railway Manu- facturing Company, a wholly owned Subsidiary of Evans Products Company and United Steelworkers of America, AFL-CIO-.CLC MTM Union, Inc., and Its Successor, MTM Union, Inc., affiliated with United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO andUnited Steelworkers of America, AFL-CIO-CLC. Cases 25-CA-5885, 25-CA-5885-2-3, and 25-CB-1854 April 2, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On August 16, 1974, Administrative Law Judge Abraham H. Maller issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief; and Respondent Company filed exceptions, a supporting brief, and an answering brief; and Respondent Union filed a re- sponse to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. We accept the Administrative Law Judge's view of the record with respect to the discharge of Pasdach. On an occasion when employee Black was being criticized by leadman Allen for faulty work, for which even our dissenting colleague agrees he was properly suspended, Pasdach injected himself in the matter and, though twice ordered to return to work by Allen, who was obviously authorized to issue such an order, Pasdach refused. This was insubordination for which, all must agree, an employee could be discharged. And we do not believe that the General Counsel has established by a preponderance of the evidence that Pasdach was not discharged for this reason but, rather, was discharged for unlawful reason.' I With respect to the dissent's proposed finding that Pasdach was earlier issued written warnings for a discriminatory reason in violation of Sec 8(a)(1) of the Act, the Administrative Law Judge has made no factual findings in this connection and the General Counsel has not expressly excepted to the Administrative Law Judge's failure to fmd an 8(a)(1) viola- tion here ORDER 257 Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent Monon Trailer, Inc., Division of U.S. Rail- way Manufacturing Company, a wholly owned Sub- sidiary of Evans Products Company, Monon, Indiana, its officers, agents, successors, and assigns, and Re- spondent MTM Union, Inc., and its successor, MTM Union, Inc., affiliated with United Brotherhood of Car- penters and Joiners of America, AFL-CIO, Monon, Indiana, its officers, agents, and representatives, shall take the action set forth in the said recommended Or- der. MEMBER FANNING, dissenting in part: For the most part I agree with the Administrative Law Judge's Decision.' However, contrary to my col- leagues and the Administrative Law Judge, I would fmd Pasdach's discharge violative of Section 8(a)(3). In fact, I find it difficult to imagine a stronger case for finding a pretextual 8(a)(3) violation. As early as August 15, 1973, before Pasdach had contacted the Steelworkers, McCormick, who was Pas- dach's supervisor at the time of his discharge, told him, "you don't want those damn Steelworkers," and con- cluded after further discussion, "well if you don't like it here you can get your ass out." On October 2, 1973, a meeting set up by Pasdach was held with the Steel- workers; 10 employees attended and signed cards. Thereafter Pasdach, Eisele, and Black began soliciting for the Steelworkers. Buckley, the MTM president, was solicited by Pasdach and signed a Steelworkers card, "so he could keep the Steelworkers' drive under surveil- lance." In October 1973, a petition was circulated among the employees to oust Pasdach from the MTM. In addition, an MTM director, Francis Allen, solicited suspected Steelworkers advocates for admissions that they had signed Steelworkers cards under threat of discharge; the Administrative Law Judge found that such a threat by Francis Allen to employee Krugger was violative of Section 8(b)(1)(A). Shortly thereafter the MTM board of directors voted 5-0 to oust Pasdach from membership. On October 17, 1973, the Steelworkers filled unfair labor practice charges against the Company. There- after, on October 22, 1973, Jackson, company presi- dent, called an employee meeting to discuss the charges 2 Contrary to the Administrative Law Judge, I do consider the MTM's use of the Xerox machine and holding one meeting on, company property to be a technical violation of the Act. I therefore find it unnecessary to conclude as did the Administrative Law Judge that if a violation it is de mtmmrs. 217 NLRB No. 44 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and to point out the disadvantages of the Steelworkers versus MTM. Pasdach arose and responded to Jack- son's statements and the resultant exchange ended with Jackson walking out in anger saying, " I ain't got time for this bullshit." At a similar -meeting at the Com- pany's Royalwood facility, Jackson in an obvious refer- ence to Pasdach said it had taken him 17 years to build up the Company and an employee who had not been there for a year "was tearing it all down, creating prob- lems." How far certain employees, the MTM, and the Com- pany were willing to go to rid themselves of Pasdach, however, did not become apparent until November 21, 1973, when Pasdach attempted to return to the plant after lunch. On that occasion a group of employees led by Bob Allen, a former MTM president and brother of Francis Allen, blocked Pasdach's entrance to the plant just outside the company gate and threatened him that it would not be healthy for him to come to work. Stahl, a director of MTM, was a participant in the incident, according to the Administrative Law Judge's findings. Swisher, the guard at the nearby truck gate and a for- mer director of MTM, did not investigate_the.disturb- ance. Also present was Francis Allen, who, the Adminis- trative Law Judge found, was there to oversee the inci- dent. Francis Allen was the brother of the leader of the block-out, a director of MTM, president of MTM after December 12, 1973, and Pasdach's leadman when he was fired; Pasdach was, in fact, fired for being insubor- dinate to Francis Allen. Francis Allen, discredited by the Administrative Law Judge, testified that although he was not working he had come to the plant to talk to MTM President Buckley; yet, after observing the incident he inexplicably left without attempting to see Buckley. After being blocked, Pasdach telephoned Plant Su- perintendent Griffin and told him not only that the had been blocked but by whom. Griffin later called Pasdach back and asked him if the incident occurred on com- pany property. When Pasdach said "no" but just out- side the gate, Griffin said he could not be responsible for what happened off company property; he also told Pasdach that the Company would not tolerate such actions and he would guarantee Pasdach's protection if he returned to work. Pursuant to Griffin's promise Pasdach attempted to return to work on November 23, 1973, the day after Thanksgiving, but was again blocked and threatened by the same employees. On this occasion, the blockers closed half of the gate to the parking lot. Nonetheless, in spite of Griffin's promise, no management officials were present nor was the disturbance investigated by the plant guard. Pasdach again left and telephoned Company President Jackson who told him he could not be responsible for what happened off company prop- erty. In his testimony Jackson admitted that he had heard rumors of Pasdach's block before it happened. Jackson took no action to prevent the block-out. And although Pasdach furnished the names of those who had blocked him out, not only was no investigation conducted but nothing was said to the employees in- volved. The Company's contention that it could not control what happened at its parking lot gate is totally absurd. In any event, the Company took no action until it received a letter from the Steelworkers advising it of its legal responsibilities. However, even then the Com- pany merely wrote the Steelworkers saying it could not police its employees off company property, and that it would deal with misconduct but could not guarantee such misconduct would not occur. MTM, on the other hand, only posted a notice to its members 2 days after Pasdach returned to work. The Administrative Law Judge, as more fully set forth in his Decision, found the Company and MTM jointly and severally responsible for blocking Pasdach's entry into the plant on November 21 and 23, 1973, and that the Company's conduct was violative of Section 8(a)(3) and (1) while MTM's conduct violated Section 8(b)(1)(A). After Pasdach returned to work, the pressure on him was not significantly decreased. Thus, on January 2, 1974, he received a written warning for absenteeism although his last absence had occurred 2 weeks before. Pasdach's - absence record, attached to the warning, shows that all of his absences, with minor exceptions and the period he was blocked out of the plant, were for reasons permitted under the contract and were pre- sumably excused. In my opinion, this warning shows the Company was still harassing Pasdach or was intent on setting him up for discharge by the manner in which the period Pasdach was blocked out was recorded by the Company. Thus, although Pasdach had called in twice concerning the block-out and the Company therefore knew why he was not at work, on his work report for that period the Company had written "no report" and had checked the column marked "did not call in." Pasdach was issued a similar warning in Feb- ruary. On these facts, I would find that the issuance of the written warnings constituted discriminatory harassment of Pasdach in violation of Section 8(a)(1). Pasdach was ill for 2 weeks in February, one of which he spent in the hospital. He returned to work on February 19, 1974. On February 20, he was assigned to a job which could be performed with either of two - drills, the so-called newer and older drills. Pasdach started with the newer drill but upon encountering problems with hole alignment switched to the older one. Three witnesses testified that the newer drill was MONON TRAILER, INC 259 malfunctioning; the Company offered no testimony to the contrary. Francis Allen, Pasdach's leadman, whose other cre- dentials have been set forth ,supra, made no comment concerning Pasdach's choice of drill untill he returned after lunch at 3 p.m., whereupon he asked Pasdach why he was using the older drill. Upon receiving Pasdach's explanation, Allen nonetheless set up the job with the newer drill. Pasdach protested and was assigned another job. Allen then put Black, the other remaining Steelworkers adherent, on the drill. As Black began using the drill, a clamp popped loose and Black pushed the drill down the rail where it struck another clamp; there was no damage to the drill. At that point Allen rebuked Black and an argument ensued. Pasdach upon seeing Black standing in anger with his fist clenched stepped between them to prevent a fight. He took Black by the shoulders and told him "to cool down because they wanted to provoke him into a rash act." Pasdach then turned to Allen who jabbed him on the shoulder and said, "Go back and do your job." Pasdach after asking Black if he saw Allen's ac- tion turned to Allen and said, `You keep your damn hands off me." Allen again tapped Pasdach on the shoulder and said, "I'll put my hands on you any time I want to" and again told Pasdach to return to work. Pasdach angrily said, "No." Allen then left and returned with Foreman McCor- mick who took them to his office, accused Pasdach of being a troublemaker, and then asked for the facts. When McCormick asked Pasdach why he had refused to return to work, Pasdach replied, "To prevent a fight." The upshot of the incident was that after further interrogation by other management officials, including Jackson and Attorney Nyhart, Pasdach was terminated for insubordination and Black was suspended for 3 days. In my opinion the Company seized on the incident of alleged insubordination to Allen by Pasdach to rid itself of Pasdach. The discharge was thus clearly pre- textual in nature. Allen was the president of MTM, the overseer of Pasdach's block-out, and one of the princi- pals in the attempt to get rid of Pasdach one way or another. He had solicited signatures against Pasdach and in his effort to get Pasdach had threatened Krugger for his Steelworkers activity in violation Section 8(b)(l)(A)• In my view Allen's conduct with respect to the use of the new drill was harassment of Pasdach and Black. Pasdach testified without contradiction that he had never in the past been criticized for his choice of drills. The new drill, according to the testimony of three em- ployees, was not working properly. Pasdach explained his reasons for using the older drill, but Allen was not interested. Then, after creating the situation, Allen chose Black, the other leading Steelworkers adherent, to replace Pasdach, although to free Black for the job Allen had to assign Gudeman to Black's job rather than just assign Gudeman, who had drilled before, to replace Pasdach. It is also significant that Allen was not a supervisor but an employee, albeit a leadman. With regard to his authority as leadman, Allen testified that he had not been told prior to the incident what his duties were except that he was to keep production moving and if anything hindered' production to report it to his fore- men. He did not testify that he had authority to harass anti-MTM employees, to provoke employees into fights, to assault employees, or tell them he would put his hands on them anytime he wanted to. In addition, Pasdach testified without contradiction that he merely stepped between two employees to pre- vent a heated argument from becoming a fight.' When assaulted by Allen, he refrained from physical response despite ample provocation. Any doubt that the Company's treatment of Pasdach was discriminatory is dispelled by the the treatment of Pasdach after McCormick arrived on the scene. For McCormick, who had earlier- expressed his feelings about the Steelworkers to Pasdach, without knowing the facts, immediately berated Pasdach for being a "troublemaker," and then asked for the facts. The Company wanted to get rid of Pasdach. It had allowed, if not encouraged, his being blocked out of the plant. Finally, it seized upon this minor incident where, in fact, Pasdach was trying to prevent rather than to cause trouble and used it to get rid of its acknowledged neme- sis. I would find Pasdach's discharge violative of Sec- tion 8(a)(3). 3 I agree with the General Counsel that, in the circumstances of this case, Pasdach's making common cause with Black was protected activity. Pas- dach and Black were the leaders of the Steelworkers drive Pasdach, due to prior events, had reasonable cause to believe Black was being unduly harassed because of his Steelworkers activity and could reasonably fear Black might do something rash under Allen's provocation and jeopardize his job. In addition, Allen was the prime mover in previous attempts to get rid of the Steelworkers and Pasdach. In conclusion since Pasdach was obviously concerned with protecting the job of a fellow Steelworkers supporter, his action could reasonably be construed as protected activity, particularly since Allen, and not Pasdach or Black, provoked the incident DECISION ABRAHAM H. MALLER, Administrative Law Judge: On March 19, 1974, the Regional Director for Region 25 of the National Labor Relations Board, herein called the Board, issued on behalf of the General Counsel an order consolidat- ing cases, complaint, and notice of hearing against Motion Trailer, Inc., Division of Evans Products Company, herein called Respondent Company, and MTM Union, Inc., and its successor, MTM Union, Inc., affiliated with United Brother- 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hood of Carpenters and Joiners of America, AFL-CIO,' herein variously referred to as MTM or the Resopndent Union.' Briefly, the complaint, as consolidated, alleged that the Respondent Company has - dominated, assisted, con- tributed to the support of, actively participated in, and inter- fered with the administration of the MTM Union. It has, by its supervisors and agents, condoned and ratified the the acts of certain employees who denied employee James T. Pasdach access to its facility and thereby prevented him from working there, and further denied said Pasdach the normal protection afforded to other employees because he joined and assisted the Steelworkers. It has interfered with, restrained, and co erced employees concerning their membership in the Steel- workers; constructively discharged employee Marvin Eisele because he joined and assisted the Steelworkers; dis- criminatorily issued written disciplinary warnings to said Pasdach and later discharged him; and imposed a discrimina- tory layoff on employee Ray A. Black because said employee joined, and assisted the Steelworkers, in violation of Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq.), herein called the Act. Against the Respondent Union, the consolidated complaint alleged that it threatened to cause the discharge of certain employees if such employees supported the Steelworkers, and blocked ingress to the facility of the Respondent Company, in violation of Section 8(b)(1)(A) of the Act. In their duly filed answers, the Respondent Company and the Respondent Union, each, denied any violations of the Act. Pursuant to notice, a hearing was held before me on March 26, 27, and 28, 1974, at Monticello, Indiana, and between April 23 and May 1, 1974, at Lafayette, Indiana. All parties were represented at the hearing and were afforded full oppor- tunity to be heard, to introduce relevant evidence, to present oral argument, and file briefs with me. Briefs were filed by all parties on or before July 1, 1974. Upon consideration of the entire record, the briefs, and upon my observation of each of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT COMPANY Respondent Company is now, and has been at all times material herein, a corporation with an office and place of business at Motion, Indiana, herein called the facility.; It is engaged in the manufacture, sale, and distribution of semi- trailers and related products. During the year preceding the ' The name of the Respondent Union appears as amended during the hearing. 2 The original charge in Case 25-CA-5885 was filed by United Steelwork- ers of America, AFL-CIO-CLC, herein variously referred to as the Charg- ing Party or the Steelworkers, on October 17, 1973 An amended charge was filed October 29, 1973 The original charge in Case 25-CA-5885-2 was filed by the Steelworkers on November 12, 1973 On December 28, 1973, the Regional Director issued an order consolidating cases, complaint, and notice of hearing in, Cases 25-CA-5885 and 25-CA-5885-2 The charge in Case 25-CB-1854 was filed by the Steelworkers on December 3, 1973 On January 28, 1974, the Regional Director issued an order consolidating cases, complaint, and notice of hearing in Cases 25-CA-5885, 25-CA-5885-2, and 25-CB-1854 As indicated in fn 1, the names of the parties were amended at the hearing 3 The facility consists of a large plant and two small ones, all located in Monon, Indiana filing of the complaint herein, which period is representative of all times material herein, Respondent Company manufac- tured, sold, and shipped from its facility, finished products valued in excess of $50,000 to points outside the State of Indiana. During said period, Respondent Company, in the course and conduct of its business operations, purchased, transferred, and delivered to its facility, goods and materials valued in excess of $50,000 which were transported to said facility directly from States other than the State of Indiana. Accordingly, I find and conclude that the Respondent Com- pany-is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Board to assert jurisdiction here. II THE LABOR ORGANIZATIONS INVOLVED United Steelworkers of America, AFL-CIO-CLC, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. MTM Union, Inc., and its successor, MTM Union, Inc., affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III THE ISSUES I. Whether the Respondent Company interfered with, co- erced, or restrained its employeees, in violation of Section 8(a)(1) of the Act. 2. Whether the Respondent Union threatened to cause the discharge of Darrell Krugger if he did not sign a paper calling for the ouster of Pasdach from the Union, in violation of Section 8(b)(1)(A) of the Act. 3. Whether the ouster of James Pasdach from the Respon- dent Union, voted by its board of directors, violated Section 8(b)(1)(A) of the Act. 4. Whether the Respondent Union threatened to cause the discharge of Martha Steele, if she posted certain documents on the bulletin board, in violation of Section 8(b)(1)(A) of the Act. 5. Whether the Respondent Company constructively dis- charged Marvin Eisele, in violation of Section 8(a)(3) and (1) of the Act. 6. Whether the Respondent Union caused James Pasdach to be blocked from entry into the plant, in violation of Section 8(b)(l)(A) of the Act. 7. Whether the Respondent Company permitted, con- doned, and/or ratified the blocking of James Pasdach from entering the plant, in violation of Section 8(a)(3) and (1) of the Act. 8. Whether the Respondent Company discriminatorily dis- charged James Pasdach, in violation of Section 8(a)(3) of the Act. 9. Whether the Respondent Company discriminatorily sus- pended Ray Black, in violation of Section 8(a)(3) -of the Act. 10. Whether the Respondent Company dominated and/or assisted the Respondent Union, in violation of Section 8(a)(2) of the Act. MONON TRAILER, INC. IV THE ALLEGED UNFAIR LABOR PRACTICES A. Background In late 1971, the Steelworkers commenced a drive to organ- ize Respondent Company's facility. A petition for an election, as well as a charge of unfair labor practices, was filed by the Steelworkers. In April 1972, Carl Morris, the Steelworkers' representative in charge of the organizing campaign, received a telephone call from Attorney Leslie E. Howell, then attor- ney for the Respondent Company, with respect to the then still pending election petition. In the course of that conversa- tion, Attorney Howell urged Morris to decide what he wanted to do with regard to the petition for an election, because Keith Jackson, president of the Respondents Com- pany, would like to form his own union. On April 26, 1972, the Steelworkers withdrew its petition for an election." A meeting of the employees of the Respondent Company was set up to be held in April or early May 1972, at which Morris was invited to address the employees with regard to soliciting their support for the Steelworkers. Attorney Howell also ad- dressed the meeting, as did President Jackson. President Jackson indicated his preference for a company union and told the employees that he would pay the expenses, furnish a lawyer, and offered the services of Ron Klimara, the Com- pany's comptroller, to help them draw up the bylaws, if they wanted to have a union. He called for a show of hands to see how many of the employees wanted to form their own union. Shortly thereafter, Attorney Howell received a telephone call from some employees who engaged him to create a union as a nonprofit corporation. Attorney Howell prepared articles of incorporation and bylaws and attended a meeting of the em- ployees at which they were approved. He was paid for his services by check from the Respondent Union. On August 15, 1972, the Respondent Company and the Respondent Union entered into a collective-bargaining agreement expiring Au- gust -31, 1973. The contract contained a union-security clause. MTM has recently ceased its status as an independent union and has affiliated with United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO. B. The Acquisition of Monon Trailer, Inc., by Evans Products Company Monon Trailer, Inc., was merged with Evans Products Company on August 31, 1973,5 and became a division of U.S Railway Manufacturing Company, a wholly owned sub- sidiary of Evans Products Company. Prior to that date, negotiations for the merger had come to fruition in early August, and to comply with Securities and Exchange Com- mission requirements, the planned merger was announced on August 14. On the afternoon of that day, President Jackson, accompanied by Donald Heffner, director of industrial rela- tions for the industrial group of Evans Products Company, met with the officers and directors of MTM and announced the planned merger. The officials of MTM were told that this announcement would be made later that afternoon at a meet- ing of all employees of Respondent Company, and that on The unfair labor practice charges were also withdrawn. 5 Unless otherwise indicated, the events detailed herein occurred during 1973 261 completion of the meeting, MTM could use this opportunity for advising the employeees of the then ongoing negotiations between MTM and the Respondent Company for a new col- lective-bargaining agreement. C. Events Leading to the Ratification of the New Contract During July and August 1973, the negotiating committee of MTM had held a series of meetings, approximately 10 to 15 in number, with the Respondent Company. During this period, MTM consulted frequently with its attorney, Mr. Boomershine. Various matters, including pension, wages, in- surance, cost of living, vacations, arbitration, absenteeism, etc., were among the matters discussed by the parties. The negotiating meetings were conducted in the offices of the Respondent Company, but the officials of MTM were not compensated for the time spent in attendance. In the meantime, merger negotiations between Motion Trailer and Evans Products Company were proceeding. As it appeared likely that the merger talks would be successful, Evans Products Company became concerned that the merger with a company facing a contract expiration date might result in its buying a strike. The concern of Evans Products Com- pany was reflected in a meeting on August 10, between Presi- dent Jackson and members of the Board of MTM, at which President Jackson requested that MTM hold a vote to either reject or accept the new contract, by 8 p.m. of August 14. As indicated above, President Jackson called a meeting of all employees which was held on August 14 at approximately 3 p.m.6 Present were President Jackson, Vice President Ehr- lich, and members of their families. President Jackson an- nounced the planned merger. He then brought up the pending proposed contract and stated his belief that the proposal was a good one; that the contract was for 3 years, because Evans Products Company wanted it that way. After President Jack- son finished, he turned the meeting over to the MTM officials and left with members of his family and the other supervisors. The MTM officials then explained the terms of the proposed collective-bargaining agreement, answered questions as to its provisions, and announced that a vote would be held that evening at the Company's facility. That evening a ratification vote was held by secret ballot at the maintenance shop' (com- pany property), and the employeees rejected the proposed contract by a vote of 94 to 50. On August 15, officials of MTM met with the Respondent Company and discussed the failure of ratification. At this meeting, it was agreed to move the cost-of-living clause to the first year of the contract and the pension provision to the second year. Also, the Respondent Company was requested to explain the provisions of the proposed contract to the employees, especially the operation of the cost-of-living clause. The Company agreed. In the meantime, James Buckley, then president of MTM, approached various employees at work and asked them if they would change their vote, if a second balloting were to take place. When Buckley approached employee James Pas- dach with this question, Pasdach responded by asking why such a thing was being done. According to Pasdach, Buckley stated that if MTM had to start negotiating with Evans Pro- 6 Employees were paid to 3:45 p m., which was the end of the shift. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ducts Company "it [the wage offer} would drop down to about a nickel an hour." Pasdach and Buckley continued to discuss the negotiations and the reason for the failure of MTM to get more benefits. Pasdach suggested to Buckley that MTM could get a lawyer free of charge by contacting the Steelworkers. At this point, Pasdach became aware of the presence of Ken McCormick. McCormick, according to Pas- dach said, "You don't want them damn Steelworkers." McCormick added that all the Steelworkers would do would be to get the employees out on strike which would gain them nothing. McCormick and Pasdach then engaged in an ex- change over the wage rate compared to those of area plants. This ended with McCormick's saying, "Well, if you don't like it here, you can get your ass out."7 On August 16, the Company called a meeting of all em- ployees to be held at 3 p.m. at the plant, and employees were paid for their attendance until the end of their shift. The meeting was attended by first-shift employees at the main facility. A similar meeting was later held at the Respondent Company's Royalwood facility for employees of the other two plants. President Jackson opened the meeting by express- ing his displeasure at the fact that the employees had refused to ratify the collective-bargaining contract. He told them that he had tried to give them a contract that included what he thought they wanted and that there would be a lesser offer from Evans Products Company. He told them that he would give them one more chance to vote on the contract and set a deadline for the vote. The meeting was then turned over to Vice President Ehrlich, who explained the terms of the con- tract with the aid of a chart. The meeting was then open for questions from the employees. In response to a question as to the reason for the delay of certain benefits until the second year of the contract, Vice President Ehrlich stated that Evans Products Company was governed by Federal guidelines. President Jackson added that a violation of the guidelines would result in fines to the employer and MTM. He then asked MTM President Buckley if MTM had the money to pay the fines. When Buckley shook his head in the negative, Jackson said, "Well, they would have to assess your checks to pay those fines." After the question and answer period, President Jackson turned the meeting over to Union Presi- dent Buckley and offered to leave, but Buckley said that this was not necessary. Buckley then called for a show of hands as to whether the employees desired another ratification vote and thereafter announced that such a vote would be held the following night. On August 17, a ratification vote was conducted at the MTM hall.' The proposed agreement was ratified by the union membership, and on August 20, the parties formally executed a collective-bargaining agreement. D. The Steelworkers' Organizing Campaign and Ensuing Events 1. The inception of the campaign Following the ratification vote, Pasdach, who had been a member of the Steelworkers at his former place of employ- ment, wrote' a letter to the president of the Steelworkers, requesting help for himself and other disillusioned employees in the form of an organizing drive. Pasdach also spoke to employee Ray Allen Black about the possibility of such a drive. Later, in September, Carl Morris, International Repre- sentative of the Steelworkers, contacted Pasdach to set up a meeting with interested employees. Pasdach told employee Marvin Eisele and asked him to spread the word about the meeting to some-of the employees Such a meeting was held on October 2, and 10 employees, including Black, Pasdach and Marvin Eisele were present. Morris passed out authoriza- tion cards to those present, and Black, Pasdach and Eisele each signed one. When Pasdach left the meeting, he ran into MTM President Buckley whom he successfully solicited to sign a Steelworkers' card.' 2. The alleged threat to Black The day after the meeting, Pasdach, Eisele, and Black began to campaign actively for the Steelworkers. On October 3 or 4, Black overheard a conversation between Foreman Ken McCormick" and another employee, John Hancock, who was accusing Pasdach of putting Steelworkers cards in his locker. Black entered the conversation and admitted that he was the one who had left the cards in the locker. A conversa- tion about the Steelworkers ensued. According to Black, Foreman McCormick told him that if the Steelworkers got in, there would be a yearly layoff of 1 or 2 months per year, and that, if Black didn't like the way things were being run, he should get a job elsewhere. Foreman McCormick's version is different. He admitted that there was a conversation, but testified that he was referring to the 1972 meeting which had been addressed by Steelworkers representative Carl Morris, during which an employee asked Morris, "If we would be out on strike. If, you know, we'd only work like maybe 10 or 11 months out of the year." McCormick continued: "And I told John Hancock that Carl Morris never gave us a direct an- swer. That he just kind of shrugged the question off." I credit McCormick's testimony in this regard, and I recommend that the complaint be dismissed in this regard. 7 McCormick was not interrogated regarding the foregoing conversation. Although the General Counsel in his brief refers to McCormick as being a foreman, the record shows that McCormick did not become a foreman until September or October 1973; that at the time the foregoing conversation occurred, McCormick was an ;hourly paid block leader, and while he had the authority to issue disciplinary warnings, the record does not show what effect, if any, such warnings had. Nor does the record show that he had any authority indicative of supervisory status. In any event, the above incident does not appear to be a threat, nor is it alleged to constitute a violation of the Act. S This was a building rented on a yearly basis from the Lions Club by the MTM This building is also referred to in the record as the Boy Scout Building. 3. The threat to Krugger During October, a petition was circulated among the mem- bers of MTM to oust Pasdach from the Union. In this connec- tion, Francis Allen, a director of MTM, approached em- ployee Darrell Krugger and asked him if he had signed a Steelworkers card. Krugger admitted that he had done so, 9 Buckley testified that he signed the card to establish a position from which he could keep the Steelworkers drive under surveillance 10 McCormick was then admittedly a foreman MONON TRAILER, INC. whereupon Allen handed him a slip of paper stating that the signer wanted Pasdach ousted from the Union. Francis Allen told Krugger that "anybody who signed a Steelworkers' card, if they don't sign one of these slips of paper, he was going to get fired." Krugger thereupon signed the slip. Francis Allen admitted asking Krugger to sign a slip, but denied that it was for the ouster of Pasdach from MTM; that it merely stated that the signer had been approached by, with a blank for the name, and asked to sign a Steelworkers authorization card. He testified further that the purpose of the inquiry was to measure the Steelworkers strength. Krugger appeared to be a straightforward, honest witness, and I credit his testimony. Conversely, I do not credit the testimony of Francis Allen, whose testimony in other respects lacked veracity. Nor do I credit the testimony of James Buckley, formerly president of MTM, who attempted to corroborate Francis Allen's tes- timony with regard to the nature of the slips that Allen was circulating, The record does not show that either Allen or Buckley was a supervisor or agent of the Respondent Company, and the latter is not chargeable with their conduct. Accordingly, I recommend that the complaint be dismissed as to the Re- spondent Company in this regard. However, as officers of MTM, thei)conduct results in a violation by MTM of Section 8(b)(1)(A) as a threat "to cause or attempt to cause an em- ployer to discriminate against an employee in violation of subsection (a)(3)" (Section 8(b)(2) of the Act). thereby re- straining and coercing Krugger in the exercise of the rights guaranteed in Section 7 of the Act, and I so find.11 4. The attempted ouster of Pasdach and Eisele The fact that petitions for the ouster of Pasdach were being circulated came to the attention of Pasdach and Eisele. Dur- ing a casual encounter with Plant Superintendent Donald Griffin, Pasdach mentioned that Robert Allen was circulat- ing such petitions on company time and requested equal time to get Steelworkers cards, signed. Griffin replied that Pasdach would not be allowed to do that, but, according to Pasdach, admitted that Allen had received the Company' s permission to engage in his activities. Superintendent Griffin admitted that he denied Pasdach permission to pass out Steelworkers cards, but denied saying that Allen had received the Com- pany's permission to engage in his activities. Eisele, who was present, corroborated Griffin's testimony in this regard. I do not credit this portion of Pasdach's testimony, and I recom- mend that the complaint be dismissed in the regard. On October 10, the board of directors of MTM met and voted unanimously to oust Pasdach and Eisele from member- ship in the Union. Pasdach and Eisele were informally in- formed of the action by MTM President Buckley. However, despite the vote, no action was actually taken to effectuate the ouster. Instead, the board of directors referred the matter to Attorney Boomershine who told them that their action could be violative of the Act. Thereupon, Buckley informed them that-they had not been ousted. It is well settled that the expulsion of an employee from membership in a union because he circulates a decertification 11 Journeymen Plasterers 'Protect,ve, etc., Local 5, 145 NLRB 1608, 1620 (1964) (and cases cited at In. 29), enfd. 341 F.2d 539 (C A. 7). 263 petition is not violative of the Act. Tawas Tube Products, Inc, 151 NLRB 46, 49 (1965); International Molders' and Allied Workers Union, Local No. 125 (Blackhawk Tanning Co. Inc.), 178 NLRB 208, 209 (1969).12 Accordingly, I recom- mend that the complaint against the Respondent Union be dismissed in this regard. - 5. The alleged threat to Steele Pasdach also attempted further the progress of the organiz- ing campaign by providing two documents to-employee Mar- tha Steele to be posted on the bulletin board at the Royalwood facility. The first of these documents was a notice to em- ployees posted pursuant to a settlement agreement approved by the Regional Director of the National Labor Relations Board, dated January 12, 1972, and signed by President Keith Jackson on behalf of the Respondent Company. The second document was a Board notice regarding elections. In the early part of October, Steele approached her foreman, Harry Denton, for permission to post these documents on the bulletin board. The bulletin board was used regularly by employees for a wide variety of personal reasons, but required company permission for posting. Foreman Denton told Steele that he would have to check the matter out with MTM Presi- dent Buckley. He then called Buckley and called Steele to the telephone to speak with Buckley. According to Steele, Buck- ley told her that if she put the papers on the bulletin board she was going against MTM and was endangering her job. Steele later called Buckley from her home and asked him why he said that she would be endangering her job by posting the notices. Buckley replied that "it was against MTM, going against MTM." Buckley's version is somewhat different. He admitted tell- ing Steele in the first conversation that "she could be jeopard- izing her job and that I didn't know how Keith Jackson would take this." He explained "I told her that it could be jeopardizing her job, that I know I wouldn't want a letter circulated that I had signed and I didn't know what action would be taken." As to the second conversation, Buckley testified that Steele told him that "there was nothing that we could do to her on her job because the Steelworkers were going to back her 100 percent with this," and that that was all there was to that conversation, "because I was afraid to say anything else." I find the evidence evenly balanced and cannot find that Buckley threatened to have MTM cause Steele's discharge. Accordingly, I recommend that the com- plaint against MTM be dismissed in this regard. 6. President Jackson's remarks at the October meetings On October 17, the Steelworkers filed unfair labor practice charges against the Respondent Company. President Jackson called a meeting of the employees to discuss the charges. During the course of the meeting, he pointed out the relative disavantages of the Steelworkers vis-a-vis MTM. Pasdach rose to respond to certain of the statements, and the resultant exchange ended with Jackson's walking out in obvious anger, A similar meeting was held at the Royalwood facility. At this 12 In the instant case, Pasdach's and E,sele's efforts , though apparently aimed at eventual decertification of MTM, had not even reached that point 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting, President Jackson told the employees that it had taken him 17 years to build up the Company and an employee who had not been there for a year "was tearing it all down, creating problems."13 The foregoing recital does not demonstrate that President Jackson engaged in any coercive conduct. Accordingly, I recommend that the complaint against the Respondent Com- pany be dismissed in this regard. E. The Alleged Constructive Discharge of Marvin Eisele Marvin Eisele began his employment with the Respondent Company in October 1971, and was classified as a painter in the finish area. On September 3, 1973, he was transferred at his own request to the classification of painter in the primer booth, because he had a rash which he felt might be due to the paint. The document effectuating his transfer states: "Transferred from paint rack to primer booth starting at A painter wages. This is to [sic] top wage for this department. With understanding wages justify filling in on paint rack in absence of normal painter." Toward the end of September, Kenneth McCormick as- sumed the duties of foreman in that department. According to Eisele, since early October he was assigned additional work, such as cleaning up the area and carrying metal parts. However, Foreman McCormick testified credibly that when he became foreman he changed the cleanup procedure in the department. Previously, every Friday afternoon, during the last 45 minutes of the shift, everyone in the department stopped his production and cleaned up the area. Instead, McCormick required that anyone in his department who had caught up with their job and that this rule applied to all of the employees in the department. Eisele admitted that he was not the only one who was required to clean up. On the day before Eisele terminated his employment, he approached Foreman McCormick and asked permission to leave work 15 minutes early that day, stating that he would work through the noon hour to make up the difference in time. Foreman McCormick granted permission. Later that day, Eisele again approached Foreman McCormick and said, "Now, I want to make it plainly clear to you that I was going to be off on union business and if you don 't feel that I should be off say so and I won't take off." It is noted that Eisele did not specify which union he was referring to. Nevertheless, McCormick granted permission. Eisele left work 15 minutes early, went outside the plant and handbilled for the Steel- workers. That evening, Foreman McCormick decided to shut down his department because of an immediate lack of work, plan- ning to shutdown for 2 or 3 days. When Eisele and the other employees of the department reported for work the next morning, they were given an option by Foreman McCormick of working in other than their regular jobs, or clocking' out and going home. All accepted other duties, and Eisele, with- out complaint and apparently rejecting the option of going home, was assigned to the paint booth, the job he previously had held until September. Eisele requested and was given permission to return to his home and get his coveralls. After his return, according to Eisele, Foreman McCormick in a "raving fit" and using vulgar language told him that if he did anything wrong on the job he would be fired; also, "if he got in any trouble over it he would contact me uptown or some place and whip my ass." According to Eisele, he asked McCormick at least twice, what his problem was and McCor- mick answered, "You know what I'm talking about." Fore- man McCormick's version is entirely different. He testified that he observed that when Eisele returned to the plant and was on his way from the clockroom to the work area, he stopped and talked to about seven or eight persons, and it took him quite a bit of time to get to the work area.14 Fore- man McCormick then sought out Buckley, then president of MTM, and with Buckley approached Eisele. He told him that he was there to paint trailers and that if he got a trailer painted and he had to wait for a forklift, he was to clean up around the area; and if he had to go to the restroom he was to go straight to the restroom and not talk to anyone and go straight back to work.15 Foreman McCormick testified fur- ther that a few days before the above incident, Attorney Nyhart, representing Evans Product Company, had held a general foreman's meeting in which he directed them "that if we knew of anyone that was active in the Steelworkers, who - was trying to get the Steelworkers in that we weren't suppose to try to do anything with them." He testified further that he was not reprimanded for having given Eisele time off in which to handbill for the Steelworkers. Following his conversation with Foreman McCormick, Eisele went directly to the office of President Jackson and announced that he was quitting. The record shows that Eisele had threatened to quit on at least two prior occasions. On February 16, 1973, Eisele actually signed a quit notice, but then changed his mind and continued his employment. The General Counsel contends that Eisele was construc- tively discharged because of his activities on behalf of the Steelworkers. I cannot agree. The General Counsel argues that Eisele was given additional cleanup duties, but the record shows that the other employees in the department were also required to clean up. With regard to the confrontation between Eisele and Fore- man McCormick on the day that Eisele quit, even if Eisele's version is credited, it does not amount to a constructive dis- charge. There is no affirmative` evidence that Foreman McCormick was reprimanded for having given Eisele time off within which to handbill for the Steelworkers. In any event, the essence of what Foreman McCormick told Eisele was that if he did anything wrong on the job, he would be fired. By implication, Eisele was told that if he did his job correctly, he would not be fired. The record shows that sometime in August, Eisele had been severely reprimanded for having failed to turn off a paint sprayer pump, as a result of which paint had run out on the floor. Accordingly, I find and con- clude that Eisele's quitting was', not caused by the Respondent Company's imposing oppressive conditions to induce Eisele to quit, and I recommend that the complaint be dismissed in this regard. 14 There is substantial evidence in the record that Eisele had a reputation 13 The reference was obviously to Pasdach who had started his employ- of stopping to talk with other employees in the plant ment on April 30, 1973. 15 Buckley corroborated McCormick's testimony as to their conversation. MONON TRAILER, INC. 265 F. The Blocking of Pasdach On November 21, the day before Thanksgiving, when Pas- dach attempted to return to the plant after lunch, a group of employees stationed themselves outside the Respondent Company's gate and physically blocked Pasdach's entry. Three of the group came up to the window of Pasdach's car, and one of them, Robert Allen, told Pasdach that it would not be healthy for him to come in to work. Pasdach left and telephoned Superintendent Donald Griffin. Pasdach told Griffin that he had been blocked out and named five or six of the employees who had been involved. Griffin promised to check in to the matter and to call him back. Later in the afternoon, Griffin called back and inquired whether the inci- dent occurred on company property. Upon being told by Pasdach that it was not on company property but just outside of it, Griffin answered, "Well, we can't be responsible for what goes on off company property," but added that the Company was not going to put up with such actions, and that he personally, would guarantee Pasdach's protection if he came to the plant. On Friday, the day after Thanksgiving, Pasdach attempted to report for work in the morning. Again, he was met by employees who blocked his access to the plant. Pasdach left the premises and telephoned President Jackson. President Jackson asked Pasdach whether the incident had occurred on company property, and on being told that it was not on company property, told Pasdach that he could not be respon- sible for what goes on off company property, saying: "If that was true, I could tell everybody uptown what to do." Pasdach then threatened to go to the Labor Board, and a heated exchange ensued. It ended when Pasdach told President Jack- son that he would come to the office to pick up his paycheck which was due that day. Pasdach informed Carl Morris, International representa- tive of the Steelworkers, of the above incidents. Under date November 27, Morris wrote a letter to Attorney Nyhart, representing the Evans Products Company, charging the Re- spondent Company with responsibility for the actions of the employees "whether such actions take place on company property or are carried out after hours." The letter requested Attorney Nyhart to advise the company representatives at Motion of their legal responsibilities and to advise the em- ployees that a repetition of such action would not be tole- rated. Under date of December 5, 1973, Attorney Nyhart wrote International Representative Morris stating that at no time did the Company condone interference with, or threats to, Pasdach by any employee. It further stated that the Company could not police its employees when they are neither on com- pany time nor company premises, and, while it would take extreme disciplinary measures against any misconduct, the Company could not absolutely guarantee before the fact that such conduct would not occur. The letter concluded with the statement that the Company extended to Pasdach the firm assurance that, if he returned to work, no threats or miscon- duct against him on company premises would be condoned. Pasdach did not return until December 10. He explained his failure to return earlier as follows: I was blocked out approximately 5 days, I brought in a Doctor's excuse and 2 days to the Dentist and also days that we had the blizzard and we were kept from work. In the meantime, work of Pasdach's being blocked on November 21 became common knowledge, and President Buckley of MTM learned of it. He immediately telephoned Attorney Steckler who advised him to tell each of the officers and directors of MTM that the Union would not condone such action. According to Buckley's credited testimony, he did so. Attorney Steckler promised to prepare a notice to be signed by Buckley and posted on the bulletin boards. Such a notice was posted on December 12, and reads as follows: MTM Union, Incorporated Notice Concerning Employee, James Pasdach Notice is hereby given by and in behalf of MTM Union, Incorporated, its officers and directors, that your Union has been charged before the National Labor Rela- tions Board with threats of physical injury and restraint of entry to the plant against James Pasdach. If any such actions were taken against Pasdach, your Union did not sponsor, encourage or condone the same, directly or indirectly, and does not and will not sponsor, encourage or condone any such acts in the future. Anyone deemed guilty of such acts will be disciplined by the Union, and presumably, by the Company. Dated the 12th day of December, 1973 It is clear from the record that supervisory personnel of the Respondent Company were aware that an attempt was going to be made to deny Pasdach entry to the plant. Thus, Fore- man Dennis E. Warren admitted that he had heard rumors to that effect and "some of the foremen had joked about it and at the time, if any event should take place, that we would arrange to be some place else, or not be involved in any way." Yet, no action was taken by the Respondent Company to warn the employees against engaging in such conduct. Nor did the Respondent Company, after the first incident of blocking out on November 21, take any effective measures to prevent a repetition of such activity. It is noted that when Pasdach called Superintendent Griffin on the afternoon of November 21 and reported the incident to him, he gave Grif- fin the names of five or six of the employees who had engaged in the blocking. It is true that Superintendent Griffin told Pasdach that if he came to the plant, he, Superintendent Griffin, would guarantee his safety. However, there is no evidence in the record that Superintendent Griffin, or any of Respondent's hierarchy, made any investigation of the mat- ter, or spoke to any of the named participants, or admonished them against a repetition of this practice. President Jackson testified that on the afternoon of the first occurrence, he spoke with MTM President Buckley and told him that the Company would not condone violence, etc.,"' but this was plainly inadequate, as subsequent events demonstrated. In- deed, the attitude of President Jackson was one of complete disinterest and disinclination to do anything in the matter, 16 President Buckley did not corroborate President Jackson in this regard. He testified that he had heard about the blocking out. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because the blocking out did not occur on company property, even though it was at the Company's gate. I find that the Respondent Company through its supervisors had notice of the impending blocking of Pasdach. Furthermore, the failure of Respondent Company to take any effective action after the first incident constituted condonation and encouragement of a repetition of the activity. It is well settled that "[a]n employer's responsibility for such exclusion is, however, not dependent upon knowledge in advance of the exclusion , but arises if the employer, as in this case, is immediately advised of the exclusion and does noth- ing to prevent its continuance" (Detroit Gasket and Manufac- turing Company, 78 NLRB 670, 671-672 (1953)). See also Altamont Shirt Corporation, 131 NLRB 112, 117-118 (1961); Fred P. Weissman Company, 69 NLRB 1002, enfd. 170 F.2d 952 (C.A. 6), cert. denied 336 U.S. 972. The Respondent Company argues that it is not required to guarantee the safety of Pasdach away from the plant. But there is an obvious difference between protecting a dissident employee from violence occurring as a result of an argument in a tavern, as distinguished from protecting the right of the employee to enter the plant, even though the employees who prevented his entry were technically on public property just outside the plant's gate. MTM is also responsible for the blocking,out. MTM sought to make it appear that the blocking out was conduct by the rank-and-file members, without authorization or con- sent of the Union. However, it is clear from the record that Andrew Stahl, a director, was one of the participants, while another director, Francis Allen, acted as general overseer of the activity. Stahl testified that on November 21, the date of the first occurrence, he went to the guard shack near the office to visit Omer Swisher, a friend; while there he saw a crowd at the gate and went there to see what was happening; he asked Joe Pearson what was going on; and he turned back toward the office before the crowd dispersed." Francis Allen, also a director, testified that during the lunch hour of November 21 he drove to the plant to see MTM President Buckley on union business , parked his car in the parking lot, and started toward the plant when he observed a crowd at the employees entrance gate; he was about 70 feet from the groupand watched for about 10 minutes until the group dispersed. He testified further that he changed his mind about seeing Buckley because "it looked like there was some trouble brewing and I did't want to have anything to do with it," and got back into his car and left the plant premises.18 I do not credit the testimony of Stahl and Francis Allen. The testimony of both men is transparently incredible. It is strange that Frances Allen went to the plant to see Buckley and then changed his mind because it looked like there was going to be trouble and he didn't want to have anything to do with it. Patently, had he continued into the plant to see Buckley, as he says he had intended to do, he could not have been implicated in the blocking. His reason for changing his mind does not ring true. If anything, it indicates knowledge 17 Neither Swisher nor Pearson was called to corroborate Stahl is Francis Allen was a brother of Robert Allen and Jerry Allen whom Pasdach identified as part to the group that blocked him from entering. Robert Allen was the spokesman for the group when Pasdach attempted to enter of what was going on, and, indeed, Allen admitted that he had heard rumors of a planned-blocking out of Pasdach; and knew when he saw the group that such might have been their purpose. I find that Stahl was a member of the group that blocked Pasdach's entry on November 21, and that Francis Allen's presence in the parking lot was for the purpose of overseeing the operation. As directors of MTM, Stahl and Allen were agents of the Union, and MTM is chargeable with their conduct. Journey- men Plasterers' Protective, and Benevolent. Society of Chicago, Local 5, 145 NLRB 1608, 1620 (1964) (and cases cited at fn. 29), enfd. 341 F.2d 539 (C.A. 7, 1965). As the Court of Appeals for the Third Circuit said in NLRB. v. Bulletin Company, 443 F.2d 863 at 867 (1971): When union officers knowingly stand passive in the face of flagrant misconduct by a body of their members calculated to force an employer into a violation of the law, without taking affirmative action to repudiate that misconduct, and when, as here, that passivity amounts to silent approbation, the Union may not escape liability by claiming the misconduct was that of its individual members and not of the Union itself. MTM President Buckley's action in speaking to the offi- cers and directors of the Union and telling them that the Union would not condone the blocking out of Pasdach does not relieve MTM of responsibility. The action was ineffective, as the blocking was repeated the next working day, this time with the officers and directors absent. It is significant that Buckley did not then and there post notices advising the members of MTM that the Union would not condone the action and directing them to refrain from such activity. In- deed, such a notice was not posted until December 12, more than 3 weeks later. Accordingly, I find and conclude that the Respondent Company and the Respondent Union are jointly and severally responsible for blocking Pasdach's entry into the plant on November 21 and 23. Respondent Company's conduct was violative of Section 8(a)(3) and (1) of the Act, while MTM's conduct violated Section 8(b)(1)(A) of the Act. G. The Discharge of Pasdach and the Suspension of Black Pasdach was discharged on February 20, 1974. On the same day and resulting from the same incident, Ray Allen Black, who had signed a Steelworkers card , was suspended for 3 days. The events leading up to the foregoing actions are as follows: Pasdach returned to work on,February 19, 1974, after having been ill for 2 weeks, during part of which time he had been hospitalized. The particular job to which Pasdach was assigned could be performed with either of two drills, com- monly called bottom rail machines. That morning Pasdach started with the newer of the drills, but switched to the older one, after encountering problems with the alignment of the holes drilled. Francis Allen, leadman in the department, was present in the department during the morning . Allen was not in the department after the lunchbreak and did not return until approximately 3 o'clock in the afternoon. When Allen returned, Pasdach was still- using the older drill, and Allen immediately asked Pasdach why he was using that machine. MONON TRAILER, INC. Pasdach explained that there had been problems with the new machine, but Allen proceeded to set up the job with the new drill. Pasdach protested the change and asked to be taken off of the job. Allen assigned him to a new task. Allen then assigned the drilling task to Black and directed him to use the new machine. As Black began to use the new machine, one of the clamps holding it to the bottom rail popped loose and Black shoved the machine down on the rail where it struck a clamp. Black's action drew a rebuke from Allen, which led to an argument between Black and Allen. Pasdach was assisting another employee in setting up a drill for the top rail when he observed the argument. As Pasdach approached Black and Allen, he saw Black standing in anger with his fists clenched, and he heard Black say that perhaps he should go home, to which Allen agreed. Pasdach stepped between Black and Allen, took Black by his shoulders, and told him to cool down, telling him that "they" wanted to provoke Black into a rash act. He said, "You know they've been after us since October. So just be `cool."' Pasdach then turned toward Allen who tapped Pasdach on the shoulder and said, "Go back there and do your job." Pasdach then turned to Black and said, "Did you see that?" He turned back to Allen and said "You keep your damn hands off of me." Allen again tapped Pasdach on the shoulder and said, "I'll put my hands on you any time I want to," and again told Pasdach to go back to work. Pasdach angrily said, "No." Allen then left the scene and returned with Foreman McCormick who directed the participants to his office. There, Foreman McCormick accused Pasdach of being a troublemaker and asked for the facts. Allen told him what had occurred. Black admitted that he had not been feeling well and had lost his temper. Allen told McCormick that Pasdach had butted in, that he had told Pasdach to return to work and the latter had refused. McCormick asked Pasdach why, and Pasdach replied, "To prevent a fight." Foreman McCormick then left his office and returned with General Foreman Charles Ehrlich who interrogated the participants. Ehrlich then left and returned with President, Jackson, Attor- ney Nyhart, Vice President Jerry Ehrlich, and Ray Cooley and Andrew Stahl, representing MTM. Attorney Nyhart questioned the participants. With regard to Black the follow- ing colloquy is significant: Q. (Nyhart): And [did you tell me] that you did slam down the drill you told me? A. I shoved it down and hit a clamp, yes. Q. And you said, "I'm sorry." "I had a headache," or something to those words? A. Something to that effect, yes. Q. Before, you slammed down the drill, did you tell Francis Allen that "I might as well break it. Then no one would have to use it"? A. I said something to that effect. Q. Those are the words that you used in your affidavit. Would that be your better recollection when you gave that? A. Yes. With regard to Pasdach, Allen told the company officials that he had ordered Pasdach on two occasions to return to 267 his job. Pasdach interrupted and called Allen a "God damn liar." Attorney Nyhart then turned to Black and questioned him. Black stated that Pasdach had twice refused to return to his job. At this point, President Jackson, Attorney Nyhart, and the two Ehrlichs withdrew from the meeting and conferred. At the caucus, it was agreed that Black should be suspended for 3 days and Pasdach should be discharged. With regard to Pasdach, Attorney Nyhart cautioned President Jackson that the discharge of Pasdach would lead to an NLRB complaint, but stated that in other plants Pasdach's conduct would be a dischargeable offense. With regard to the 3-day suspension imposed upon Black, the following colloquy occurred: Q. (Nyhart): Do you think we were unfair to you? A. To me? Q. Yes. A. Really, yes. Q. Do you think it was too severe. A. I don't think I should have got three days off for it. Q. Would a written warning have been fair? A. I think so, yes. A review of the record, summarized above, leads me to the conclusion that the General Counsel has failed to prove that the disciplining of Black and the discharge of Pasdach were violative of Section 8(a)(3) of the Act. With regard to Pas- dach, the record is clear that he injected himself into a matter that was of no concern to him and insisted on participating in the dispute, refusing twice an order to return to work. He was plainly guilty of insubordination. The issue whether Black should have received a warning notice, rather than a 3-day suspension, is not properly before the Board, as the General Counsel has presented no evidence that other em- ployees who were not adherents of the Steelworkers received only warning notices in similar situations. Indeed, no compa- rable evidence whatsoever was presented by the General Counsel. Accordingly, I recommend that the complaint be dismissed in this regard. H. The Alleged Domination of and Assistance to MTM by - the Respondent Company The General Counsel's contention that MTM was from its creation dominated and assisted by the Respondent Com- pany, which occurred more than 6 months prior to the filing of the charge herein, is barred by the provisions of Section 10(b) of the Act. Evidence concerning the creation and for- mation of MTM was received in evidence in accordance with the decision of the Supreme Court in Local Lodge No. 1424, International Association of Machinists, AFL-CIO,' and Inter- national Association of Machinists, AFL-CIO v. N.L.R.B., 362 U.S. 411, 416 (1960) "to shed light on the true character of matters occurring within the limitations period . . . ." The background evidence so adduced does not demonstrate that the events occurring within the 10(b) period were viola- tive of the Act. Although the employees in forming MTM availed themselves of the services of the Respondent Com- pany's attorney, it is clear from the record that the Respond- ent Company did not pay any of the-expenses of the incorpo- 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ration of MTM. Rather, it is undisputed that MTM paid the attorney's fees and all expenses relating to the incorporation of the Union. Furthermore, MTM has at all times been self- sustaining and has employed its own counsel after its mcorpo- ration. As far as events occurring within the 10(b) period are concerned, the record is devoid of any evidence of domination by the Respondent Company. Insofar as assistance by the Respondent Company is concerned, the record shows only that the Respondent Company permitted MTM to hold a meeting on company property to take the first vote by the employees as to whether they would ratify the proposed new contract. At all other times, MTM met at a rented hall, not connected with the Respondent Company. Also, it is-admit- ted that the Respondent Company permitted MTM to use its Xerox machine. However, the evidence shows that Respond- ent Company rents the Xerox machine, that there is a mini- mum rental, that the Respondent Company does not use the Xerox machine sufficiently to equal the minimum rental charge, and as a result permits organizations in the com- munity, including MTM, to use the machine. Thus, the Re- spondent Company incurs no additional expense in permit- ting MTM-to use the Xerox machine. While the foregoing conduct of the Respondent Company may technically amount to assistance within the meaning of the Act, I find and conclude that it is de minim is, and I recommend that the complaint be dismissed in this regard. V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company and the MTM set forth in section IV, above, occurring in connection with the operations of the Respondent Company described in sec- tion I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI THE REMEDY Having found that the Respondent Company has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act, I shall recommend that it cease and desist there- from and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that both the Respondent Company and the Respondent Union are responsible for the blocking out of Pasdach from the plant, I shall recommend that they jointly and severally make Pasdach whole for any loss of pay he may have suffered by reason of such discrimination against him, by payment to him of a sum of money equal to that which he would have earned on the dates when he was refused entry into the plant, with interest to be computed in the customary manner." I shall further recommend that the Respondent Company be ordered to preserve and, upon request, make available to the Board or its agents, payroll and other records to facilitate the computation of backpay due to Pasdach. CONCLUSIONS OF LAW 1. Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. MTM Union, Inc., and its successor MTM Union, Inc., affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. United Steelworkers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 4. By condoning the blocking of Pasdach from entering into its plant, the Respondent Company discriminated in regard to the employment of Pasdach, thereby encouraging membership in Respondent Union, and has engaged in a unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 5. By causing the Respondent Company to discriminate against Pasdach, in violation of Section 8(a)(1) of the Act, the Respondent Union has restrained and coerced Pasdach in the exercise of rights guaranteed in Section 7 of the Act and has hereby engaged in an unfair labor practice within the mean- ing of Section 8(b)(1)(A). 6. By threatening employee Krugger to have the Respond- ent Company discharge him if he did not support the ouster of Pasdach from the Respondent Union, in violation of Sec- tion 8(a)(3) of the Act, the Respondent Union has restrained and coerced Krugger in the exercise of rights guaranteed in Section 7 of the Act and thereby engaged in an unfair labor practice within the meaning of Section 8(b)(1)(A) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER20 A. Motion Trailer , Inc., Division of U.S. Railway Manu- facturing Company, a wholly owned subsidiary of Evans Pro- ducts Company, its officers, agents, -successors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, AFL-CIO-CLC, or in any other labor organiza- tion of its employees, by permitting other employees to pre- vent the entry into Respondent Company's plant of any ad- herent of such union. (b) In any like or related manner interfering with , restrain- ing, or coercing its employees in the exercise of the right to self-organization, to form, loin, or assist any labor organiza- 19 EW. Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962) 20 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes -- MONON TRAILER, INC. tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right is affected by the proviso of Section 8(a)(3) of the Act. - 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with MTM Union, Inc., and its successor, MTM Union, Inc., affiliated with Union Brother- hood of Carpenters and Joiners of America, AFL-CIO, make whole James Pasdach for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of the Order. (c) Post at its plant in Motion, Indiana, copies of the at- tached notice marked "Appendix A."21 Copies of the notice, on forms provided by the Regional Director for Region 25, after being duly signed by an authorized representative of the Respondent Company, shall be posted by the Respondent Company immediately upon receipt thereof, and be main- tained 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 the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. MTM Union, Inc., and its successor, MTM Union, Inc., affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, agents, and representa- tives, shall: 1, Cease and desist from: (a) Blocking, or attempting to block, the entry of em- ployees of the Respondent Company from their place of work at the Respondent Company's plant, or in any manner threat- ening employees of the Respondent Company with physical harm, injury, or reprisal if they work or attempt to work at the premises of said Respondent Company. (b) Threatening to cause, or to attempt to cause, Respond- ent Company, its officers, agents, successors, or assigns, to discharge, layoff, or otherwise discriminate against its em- ployees in violation of Section 8(a)(3) of the Act. (c) In any other manner restraining or coercing employees of Respondent Company in the exercise of their right to self-organization, to form, join, or assist any labor organiza- tion„ to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pretection, or to refrain from any and all such activities, 269 except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with the Respondent Company make James Pasdach whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Post at its business offices, meeting halls, and places where notices to members are customarily posted, copies of the attached notice marked "Appendix B."22 Copies of said notice, on forms provided by the Regional Director for Re- gion 25, after being duly signed by an authorized representa- tive of said Union, shall be posted by the Respondent Union immediately upon receipt thereof, and be maintained 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 ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 22 See In 21, supra. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in United Steel- workers of America, AFL-CIO-CLC, or in any other labor organization of our employees, by permitting other employees to prevent the entry into our plant of any employee-adherent to such union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any and all such activities, except to the ex- tent that such right is affected by the proviso to Section 8(a)(3) of the Act. WE WILL jointly and severally with MTM Union, Inc., and its successor MTM Union, Inc., a/w United Broth- erhood of Carpenters and Joiners of America, AFL-CIO, make whole James Pasdach for any loss of pay he may have suffered by reason of the discrimination against him. 21 In the event the Board's Order is enforced by a Judgment of the United MONON TRAILER, INC, DIVISION OF States Court of Appeals, the words in the notice reading "Posted by Order U.S. RAILWAY MANUFACTURING of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an COMPANY, A WHOLLY-OWNED SUBSIDIARY Order of the National Labor Relations Board." OF EVANS PRODUCTS COMPANY 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT participate in, or knowingly permit our members to participate in, blocking or attempting to block employees of Monon Trailer, Inc., Division of U.S. Railway Manufacturing Company, a wholly-owned sub- sidiary of Evans Products Company from their places of work at the plant of said Company, or in any manner threaten the employees of said Company with physical harm, injury, or reprisal if they work or attempt to work at the premises of said Company. WE WILL NOT threaten to cause, or to attempt to cause, Monon Trailer, Inc., to discharge or layoff, or otherwise discriminate against its employees in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT in any other manner restrain or coerce employees of Monon Trailer, Inc., in the, exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any and all such activities, except to the ex- tent that such right is not affected by the proviso to Section 8(a)(3) of the Act. WE WILL, jointly and severally with Monon Trailer, Inc., make James Pasdach whole for any loss of pay he may have suffered by reason of the discrimination against him. - MTM UNION, INC, AND ITS SUCCESSOR MTM UNION, INC, A/W UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO