Chrysler Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chrysler Corporation, Dodge Truck Plant and Stephen S. Smith. Cases 7-CA- 11597 and 7-CA- 13414 September 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 22, 1977, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, the Charging Party and the Respondent filed cross-exceptions and supporting briefs, and the Respondent and the Charging Party filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 We agree with the Administrative Law Judge, for the reasons stated by him, that Respondent violated Section 8(a)(1) of the Act by discriminatorily enforcing its nonaccess rule against, and causing the arrest of, its former employee Stephen S. Smith because he was distributing literature in Respon- dent's employee parking lot. However, we find that the Administrative Law Judge's recommended Order with respect to this violation is overly broad. Accordingly, we will modify the recommended Order so as to limit its scope to the violation found. We also find inappropriate that portion of the Administrative Law Judge's recommended Order which requires that Respondent "notify ... appro- priate civil authorities . . . that it is withdrawing a criminal complaint lodged against Stephen S. Smith .... " Inasmuch as the record reveals that the local police, and not Respondent, signed the criminal complaint against Smith, it is beyond our remedial power to effect the withdrawal of that complaint. However, since we find, in agreement with the Administrative Law Judge, that Respondent violated Section 8(a)(1) of the Act by, inter alia, causing Smith's arrest on October 11, 1976, we will require that Respondent notify the appropriate authorities of our findings in this regard. 232 NLRB No. 74 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Chrysler Corporation, Dodge Truck Plant, Warren, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1: "1. Cease and desist from: "(a) Disparately enforcing any rule, practice, or policy which restricts or forbids access to its employee parking lots by nonemployees engaging in activities protected by Section 7 of the Act. "(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Substitute the following for paragraph 2(a): "(a) Notify, in writing, the Michigan State District Court and such other appropriate civil authorities in the City of Warren, Michigan, and/or Macomb County, Michigan, of the findings of the National Labor Relations Board that Respondent violated Section 8(a)(1) of the Act by, inter alia, causing the arrest of Stephen S. Smith on or about October II, 1976." 3. Substitute the attached notice for that of the Administrative Law Judge. The Respondent and the Charging Party have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We disavow, as not supported by the record, the Administrative Law Judge's finding that Smith "encouraged" employee attendance at the Keweenah Bar meeting. At most, the record shows that he asked one employee if she would be coming to the meeting. On the other hand, in finding that Respondent discriminatorily enforced its "non-access policy" against Smith, the Administrative Law Judge states that there is "no indication" that the parking lots were less available to vanous purveyors of food, drink, and merchandise after Respondent posted its no trespassing signs in May 1976 than they were before. William Short, an employee at the Warren plant, testified that all kinds of vendors have come to the lot in the summer, including the summer of 1976. and have sold their wares to employees, including plant protection personnel. I The Administrative Law Judge inadvertently omitted from his recommended Order the cease-and-desist language which the Board traditionally provides in cases involving 8(aXI) discriminatory conduct. We shall modify the recommended Order and posting notice accordingly. 466 CHRYSLER CORPORATION APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT disparately enforce any rule, practice, or policy which restricts or forbids access to our employee parking lots by nonem- ployees engaging in activities protected by Sec- tion 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL notify, in writing, the Michigan State District Court and such other appropriate civil authorities in the City of Warren, Michigan, and/or Macomb County, Michigan, that the National Labor Relations Board has found that, by causing the arrest of Stephen S. Smith on or about October 11, 1976, we violated Section 8(a)( ) of the National Labor Relations Act. CHRYSLER CORPORATION, DODGE TRUCK PLANT DECISION FINDINGS OF FACT A. Statement of the Case WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at Detroit, Michigan, upon a consolidated complaint' issued by the Regional Director for Region 7, which alleges that Respondent Chrysler Corporation 2 violated Section 8(aX)(1) and (3) of the National Labor Relations Act, as amended. More particularly, the consolidated complaint alleges that Respondent unlawfully discharged employee Stephen S. Smith, a chief steward at its Dodge Truck Assembly Plant in Warren, Michigan, and thereafter unlawfully caused Smith to be removed from the parking lot of its plant on I The principal docket entries in this case are as follows: Charge filed by Stephen S. Smith in Case 7-CA-11597 on November 20, 1974; complaint issued on September 16, 1975; Respondent's answer filed on September 29. 1975; charge filed by Stephen S. Smith in Case 7-CA- 13414 on October 12, 1976; order consolidating cases and amended complaint issued on November 15 1976: Respondent's answer filed on December 6, 1976; hearing held in Detroit, Michigan. on December 13-17. 1976, and January 4-7, 1977; briefs filed with me by the General Counsel, the Charging Party, and Respondent on or before February 28, 1977. These cases were originally consolidated with Case 7-CB-3215, which case arose out of a charge filed by Stephen S. Smith against the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and its Local No. 140. The complaint issued by the Regional Director for Region 7 alleged that the respondents in that case illegally refused to process a grievance on behalf of Smith in violation of Sec. 8(bXlXA) of the Act. The charge in that case was withdrawn by the Charging Party during the hearing herein and the amended complaint was thereupon dismissed as to those respondents. two occasions while he was distributing literature. Respon- dent maintains that Smith was discharged for participating in and leading a wildcat strike on May 31, 1974, and on June 3, 1974, and that his removal from the plant premises on two occasions in 1976 was effectuated because Smith, a nonemployee, was trespassing. Upon these contentions, the issues herein were drawn. 3 B. The Unfair Labor Practices Alleged 1. Background relating to the handling of grievances by Chrysler and the UAW Chrysler operates a large assembly plant for Dodge trucks at Warren, Michigan, a suburb of Detroit. At this plant, often referred to as Warren Truck, some 6,000 employees are regularly employed on two shifts. About 5,300 of them are production and maintenance personnel who are represented by UAW Local 140. During the period here in question, these employees were covered by the 3- year Chrysler-UAW national agreement which ran from 1970 until September 1973, and thereafter by another 3- year agreement which was concluded and approved in the fall of 1973 after a I-week national strike of all Chrysler production and maintenance employees. In addition, Warren Truck employees have been covered by local agreements which extend through the same approximate time periods as the national agreements. As a result of the series of collective-bargaining agree- ments and the practices of the parties over an extended period of time,4 elaborate and sophisticated machinery has been developed for the purpose of addressing and adjusting the large number of grievances which arise in the course of operating large production facilities, including but not limited to Warren Truck. On the management side, labor relations is supervised by the corporate labor relations office at Chrysler headquarters in Highland Park, Michi- gan. At the plant level, labor relations is the direct and immediate responsibility of the personnel manager who is assisted by a supervisor of labor relations. The supervisor of labor relations acts as spokesman for management in the grievance procedure and in the day-to-day dealings with union representatives. He is assisted by a number of labor relations representatives, whose functions are to investigate grievances at the first step of the grievance procedure, discuss grievances with chief stewards, and attempt to resolve grievances at the first step. Labor relations 2 Respondent admits, and I find, that it is a Delaware corporation which maintains its principal place of business at Highland Park, Michigan. At that and other locations Respondent is engaged in the manufacture, sale, and distribution of trucks, automobiles, and other automotive vehicles and products. During the calendar year 1975, a representative period. Respon- dent, in the course and conduct of the above-described business, derived gross revenues in excess of SI million and purchased at its Michigan locations directly from points and places outside the State of Michigan goods and materials valued in excess of SI million. Accordingly, Respon- dent is an employer engaged in interstate commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. Both the International Union. United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and its Local 140, respectively (which are herein sometimes referred to as Union), are labor organizations within the meaning of Sec. 2(5) of the Act. 3 Errors in the transcript have been noted and corrected. 4 The record herein contains arbitration awards going back to 1944. 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives have limited authority to adjust grievances without reference to higher authority in such matters as unexcused absences. They may, within company guide- lines, waive discipline in proper cases for such absences.5 On the union side, a grievance can be orally presented at the first step by the chief steward of a plant department. The chief steward is elected by the employees of the department principally to fulfill this function. He is assisted by line stewards (or blue button stewards) whom he appoints. These latter are given no formal recognition by Respondent in the grievance machinery but do play a limited role in the presentation and resolution of grievances which are normally generated in a large plant. Because of the high premium placed by Respondent in keeping its assembly lines going, chief stewards are normally permit- ted to devote their entire working day to contract administration rather than to the performance of produc- tion work. If a grievance is not amicably adjusted at the first level between the chief steward and a foreman or labor relations representative, it is reduced to writing and given to the shop committeeman (of whom there are three at Warren Truck) for discussion with the labor relations supervisor. Meetings for this purpose are normally held on a weekly basis at Warren Truck. If this step does not dispose of a grievance at Warren Truck, the president of Local 140 takes up the matter with the plant manager. At the fourth step of the procedure, the grievance leaves the plant and local union level and is then considered by corporate headquarters personnel and representatives of the UAW International. These representatives meet as an appeals board and make further attempts to negotiate the grievance. If this effort is unsuccessful, the International may then elect to submit the grievance to the impartial chairman of the appeals board, who acts as a neutral arbitrator on the matter. He hears the grievance and renders a written decision which is binding on all parties. In the entire history of the Chrysler-UAW grievance machinery, only two individuals have served as impartial chairman. 6 Correlative to the establishment of this machinery is a limited no-strike clause contained in section 5 of the national agreement between Chrysler and the UAW. The general prohibition in section 5 states that: The Union will not cause or permit its members to cause, nor will any member of the Union take part in, any sit-down, stay-in or slow down in any part of the Corporation, or any curtailment of work or restriction of production or interference with production of the Corporation. The Union will not cause or permit its members to cause nor will any member of the Union take part in any strike or stoppage of any of the Corporation's operations or picket any of the Corpora- tion's plants or premises until all the grievance procedure outlined in this agreement has been exhaust- ed .... I Respondent denies that labor relations representatives are supervisors within the meaning of Sec. 2(l ) of the Act. This section defines supervisors. inter alia, as persons who, in the interest of the employer can "discipline other employees ... or . .. adjust their grievances, or effectively recommend such action." As Respondent's own testimony indicates clearly that labor relations supervisors perform such functions. I conclude that they Under the agreement, most matters, including all discharges, are appealable to the impartial chairman and hence are not strikable. Health and safety grievances, as well as grievances involving production standards, are not appealable and, under certain circumstances, are strikable during the contract term. However, before an authorized strike may occur on such matters, the agreement provides that the International must within six days after receiving the Plant Manager's [unfavorable] decision [notify] the Manager of Labor Relations of the Corporation in writing that it has authorized a strike, specifying the grievances that are involved in the proposed strike, and negotiations have continued for at least seven separate days on which meetings have been held after the Corporation has received such notice. In short, sanction for health, safety, and production standard strikes during the contract term must be obtained from the International; the proposed strike may take place only on specified grievances; and Respondent must have 7 days of negotiations to resolve such questions before an actual walkout may lawfully occur. This final requirement is normally initiated by the service by the International of what is commonly referred to as a "seven-day letter." 2. Background relating to Stephen S. Smith Stephen S. Smith, a Haverford College graduate, had been employed by Respondent as a welder for approxi- mately 4 years at the time of his discharge on June 10, 1974. At that time he was assigned to the second shift in department 9110 of the Warren Truck plant. In this department, often called the body-in-white department of the metal shop, Dodge trucks are assembled from various components prior to painting. In 1974, about 320-340 persons were employed in department 9110 on the second shift. During the period of 4 months in 1971, Smith received four disciplinary warnings or layoffs but these matters seemed to have played no part in his ultimate termination. In terms of meeting company requirements for ability and productivity, Smith apparently was a satisfactory employ- ee. In 1971, he was given an interim appointment as chief steward in department 9110 on the second shift and was subsequently elected to that post by his constituency. He held the position of chief steward at the time of his discharge. For reasons indicated above, very little of his time (except during overtime hours) was devoted to working the assembly line after his election as chief steward. There is no question but that Smith was an exceedingly active unionist. He campaigned for and was elected delegate to the UAW's International convention in Atlantic City in 1972. He was a candidate but was not elected to the 1974 International convention in Los are supervisors within the meaning of the Act and that Respondent is vicariously responsible for their statements and actions. 6 Respondent has waived on the record any defense to this complaint which might be interposed under the doctnne of Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). 468 CHRYSLER CORPORATION Angeles. Much of the evidence introduced in this case prior to the withdrawal of the charge by Smith against the Union indicated that Smith was actively opposed to the Local and International union leadership. His campaign literature and other literature which he disseminated from time to time disparaged the Local and International UAW leader- ship in vehement terms. As a member of the Local 140 executive board, he was often in a minority position on internal union questions and often voiced opposition to Local 140 leadership at local union meetings. He actively campaigned against ratification of the 1973 UAW-Chrysler National Agreement.7 In fact, he was removed by plant guards from the company parking lot while he was handing out antiratification literature to striking employees who had assembled at parked trailers to receive their paychecks. Smith also opposed the 1973 Local agreement and opposed any return to work at Warren Truck until the local agreement had been ratified, an event which did not occur until after three votes by the Local 140 membership. Smith had numerous complaints against Respondent which he pressed during his term of office as chief steward in department 9110. His basic complaint against the Union (both local and International) was that they were indiffer- ent and ineffective in pressing grievances which Smith felt were meritorious. He frequently charged that the Union was in league with management. He voiced his displeasure not only through normal channels (e.g., grievance discus- sions, union membership meetings, etc.), but also by the periodic publication and distribution of the pamphlets, variously entitled "Unity News" or "On the Line." These pamphlets were edited and paid for, in part, by Smith and by other employees who held similar opinions. In these pamphlets, which were widely distributed to Warren Truck employees, Smith appeared as the champion of oppressed workers against a union-management conspiracy which sought to deprive them of decent wages and working conditions as well as an effective means of redress. It is clear that Smith had developed a faction or following among Warren Truck employees which had several meetings prior to the specific events of May 31-June 14, 1974, and which assisted Smith politically within Local 140 and in the publication and distribution of protest litera- ture.8 In his capacity as chief steward on the second shift in department 9110, Smith initiated and processed numerous grievances relating to a variety of problems but principally the questions of health and safety. While Smith was among the most active stewards in the filing of grievances, the General Counsel's evidence indicates that there were, at Warren Truck, other chief stewards who statistically had initiated more grievances, and also more health and safety grievances, than Smith had. One of Smith's most common complaints was that, at the second step of the grievance machinery, the plant shop committeeman would frequently "WWP" the grievance, that is, he would withdraw the grievance without prejudice, and thus leave the underlying problem unresolved. One grievance relating to Smith which was satisfactorily adjusted related to an incident which T Warren Truck employees declined to ratify the 1973 Chrysler-UAW national agreement. but overall ratification carried by virtue of voter approval at other Chrysler plants. arose in October 1973, when Foreman Jaroslav Krawczyk suggested to various employees the signing of a recall petition to remove Smith as shop steward. Respondent agreed that Krawczyk had no business making such a suggestion, informed Krawczyk of its position, and pledged that it would not happen again. I credit the testimony of various witnesses that, from time to time, management representatives privately expressed irritation at Smith and referred to him in pejorative terms, although it is equaily true that Smith was not singled out from among other union activists for such hostility. Such remarks were also expressed, albeit privately, about other chief stewards as well. From time to time, department 9110 and other depart- ments at Warren Truck experienced short work stoppages which were technically illegal but which did not result in disciplinary action. Heat walkouts occurred on occasion during the summertime. One foreman was asked by Plant General Foreman Harry Pesha to keep an eye on Smith on such occasions, as Smith was suspected of instigating these walkouts. However, no substantive proof was ever ob- tained of his complicity. On another occasion, at the conclusion of the 1970-73 collective-bargaining agreement, when Chrysler was the UAW's industry "strike target," the entire plant, with the approval of several union stewards, "jumped the gun" and walked out, about 4 hours before the expiration of the agreement. On a couple of occasions, Smith, in his capacity as chief steward, was able to end some brief and spontaneous work stoppages in his department which occurred because of health and safety protests. One such occasion involved a work stoppage by Emma Good, who complained that she could not work any longer because of an accumulation of a waterproofing sealer on the floor surrounding her work- bench. Smith acted as intermediary, was able to obtain immediate management action in cleaning up the situation, and assisted in getting the assembly line back into operation. On another occasion, when plant guards were summoned during the course of a brief work stoppage, Smith was able to intercede and get the line moving again in exchange for a removal from the scene of plant protection personnel. 3. Events prior to and including the May 31, 1974, walkout The spring of 1974 witnessed a campaign for Local 140 officers and for delegates to the UAW International convention in Los Angeles, which took place from June 3 through June 10. In this campaign, Smith lost his bid to become a delegate from Local 140. From Smith's point of view, it also witnessed a growing discontent in department 9110, especially over such questions as supplying workers with adequate gloves and aprons. Some repairmen in his department were also unhappy about undermanning in their classification. On one occasion, a threatened walkout was averted over the possibility of discipline to employee John Baker who was accused of not finishing a job on the line before a vehicle was moved to the next station on the s About a year after his discharge, Smith ran for president of Local 140 on the workers unimty slate which he helped to form. He was not elected. 469 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assembly line. At Smith's suggestion, the repairmen had a meeting with various foremen to voice their longstanding complaints, but the record does not reflect what, if anything, resulted from this meeting, which took place on May 24. On the evening shift of Thursday, May 30, a rumor became rampant in department 9110 that the repairmen were planning to strike the following day and that a meeting to discuss grievances was planned at the Keween- ah Bar, located just across the road from the plant, to begin sometime before the second-shift starting time. A line steward, John Battle, informed Smith that evening that the repairmen "were going to walk." The record is clear that Smith not only knew of this meeting, but also that he encouraged attendance at it. During the course of this shift, Smith went to the company dispensary and made a request for medical services. He complained to the nurse in attendance that he was having trouble breathing because of his chronic bronchitis and was given some pills to take. The following morning, Smith visited Dr. Jack Salomon at Detroit General Hospital and made the same complaint about difficulty in breathing. Salomon, a personal friend of Smith's, examined him, noted his symptoms (including some objective symptoms such as a red throat), and concluded that Smith was suffering from an acute exacer- bation of his chronic bronchitis. Salomon concluded that Smith should not go to work on Friday, May 31, but that he would be able to return the following Monday. He prescribed an expectorant, phenergen (take one teaspoon every 4-6 hours), and an antibiotic, Ampicillin (take one capsule every 6 hours). Smith went from the doctor's office to the Keweenah Bar. He did not have the prescriptions filled until the following day. Smith arrived at the Keweenah Bar between 2:30 and 3 p.m. The starting time for the second shift was set for 3:30 p.m. A group of department 9110 employees began to gather at the bar. A number of them informed Smith that they were not going to work. Smith testified that soon after arriving at the bar he formed the conclusion that employ- ees were serious and were not merely engaging in idle talk. Smith ordered a beer and a sandwich and began talking with various persons who were present. The bar is located about a 10-minute walk from the part of the Warren Truck plant where department 9110 employees were required to punch in. When the expected complement of employees failed to start coming in for the second shift in that department, Respondent's management became con- cerned.9 Respondent had received information from second-shift supervisor William A. Thomas, who had lunched at the Keweenah Bar, that a large number of employees had gathered at that location, so Personnel Director Charles W. Pond requested Labor Relations Supervisor Michael Manty to go across the street, investi- gate the report, and see if he could get the employees to 9 Some 344 employees were expected for work that afternoon in department 91 10. Some 101 did not show up for work. Respondent normally experienced a 10-percent absenteeism rate on its Friday shifts at Warren Truck. to Smith estimates that about 50 department 9110 employees were present. "n In the Respondent's view, Smith was guilty of "negative leadership," a concept developed by the impartial chairman of the Chrysler-UAW appeals report for work. Manty went to the barjust before 3:30 and saw between 100 and 150 people at this location.10 They were engaged in drinking and talking and were generally comporting themselves in a manner that might be expected in a barroom. Manty received a couple of catcalls from individuals in the bar. He saw that five or six employees had gathered about Smith and went up to Smith and spoke to him. He asked Smith if he was coming to work. Smith, who was drinking a beer and eating a sandwich, said he was not because he was sick and made some remark to the effect that "why can't a fellow take a day off?" Manty left, returned to the labor relations office, and told Pond of his findings. Pond suggested that Manty return and warn Smith and the other employees that what they were doing violated the no-strike provision (art. 5) of the national agreement and that they were subjecting themselves to possible discipline. Manty returned immediately in the company of Labor Relations Representative Emmet Grier. Again they were greeted with catcalls. ("Are you having any trouble making trucks?" "We were wondering when you would get here.") Manty approached Smith, told him that the second-shift employees at the bar were in violation of the national agreement by failing to report for work, and warned that they would be subject to discipline up to and including discharge. Smith gave a noncommittal reply to the effect that, if he saw any employees around who were in violation of the contract, he would tell them. Smith states that he relayed Manty's message in these terms but admits that he never actually told any employees to go to work. Manty returned to the labor relations department and reported his further action. At this time, Manty, Pond, and Plant Manager Jack Kahle agreed that Smith should be discharged for leadership and participation in an unautho- rized walkout." Since Smith was a shop steward, they could not under company policy effectuate the discharge directly and had to get clearance from the corporate labor relations office. Because of the lateness of the hour, such clearance could not be obtained until the following Monday. On that afternoon, Respondent received an excessive number of sick calls so it attempted to telephone the approximately 80 employees in department 9110 who had not reported but who had been at work the preceding day. They reached only a limited number of employee residences and obtained in many instances conflicting information as to the whereabouts of the individual in question. As a result of the walkout or "sickout" which occurred on that shift, Respondent administered discipline to 82 absentee employees. Some 67 were given written warnings, II were given 3-day suspensions, 3 were give 5- day suspensions, and I - Smith - was eventually discharged. During the course of the afternoon and evening in question, Respondent lost the production of 121 trucks out of a normal shift quota of about 320. board in a series of arbitration awards which have been issued over the years. According to this concept, shop stewards and other union officials have an affumnative duty to take steps to see that their constituents live up to the Union's contractual undertaking. The failure of a steward to take affirmative action is this regard is viewed as "negative leadership." Such a neglect of duty is regarded by the umpire as grounds for discharge just as much as some overt action on the steward's part. 470 CHRYSLER CORPORATION Meanwhile, back at the bar, a crowd of workers gathered in the parking lot to listen to UAW Shop Chairman Chester Peuterbaugh. Peuterbaugh told the employees to return to work; however they did not heed his admonition. At this point, police from the city of Warren arrived and inquired about the gathering but took no action since it did not appear that any violence or other misconduct was occurring. Several employees inside the bar phoned the Company to report that they would not be at work because of illness. This was accomplished by a single phone call in which the telephone receiver was passed from person to person so that each might report his absence from the second shift and obtain a call-in number.12 As police and company officials had appeared at the bar, and because it also appeared that employees were not buying food and beverages in sufficient quantities, the management of the Keweenah Bar ordered the department 9110 employees to leave. Before they left, Smith made a phone call to another nearby establishment, Neffs Lounge, and arranged for employees to regroup at Neff's. About 50 people, including Smith, gathered at Neffs in a side room which is often used for meetings and parties. Local 140 Vice President Nate Gooden and other Local 140 officials came to Neff's and addressed the employees who were gathered there. I find that Smith, the ranking union official among the group which Gooden addressed, introduced Gooden and urged employees to be quiet and to listen to Gooden. Gooden urged employees to return to work and suggested that it might still be possible to negotiate a return without the imposition of any discipline. He reminded the employees in question that they were in violation of the no-strike provision of the national agreement and warned them that they had subjected themselves to possible company discipline. He offered to forgo his impending trip to the UAW convention in Los Angeles if his presence in Detroit would serve to mollify the'situation. His entreaties fell on deaf ears. The gathering at Neffs continued after Gooden left. They continued to discuss grievances. Another of the topics of conversation was the arrangements for a proposed picnic. to take place a week from the following Sunday. Smith asked one of the employees, Olivia Fawlkes, to take notes of the meeting, including names and phone numbers of employees who would be attending the picnic. This was the fourth or fifth time that Mrs. Fawlkes had acted as ad hoc secretary to a factional meeting of Warren Truck dissident employees. Smith also asked other employees to perform certain chores to organize the picnic, such as '' Some controversy arose at the hearing concerning whether employees A ho expect tio miss less than 5 days' work are under any obligation to notify lie Cornmpani It their plans. Sec. 95 of the national agreement provides that ;a ssisem shall he established in each plant which will permit an employee to cerilt the fact that he has notified the Corporation by telephone of his inabilitS to report for work." On March 6. 1973. Warren Truck Plant Ma.inager Jilck Kahle made a talk over the plant intercom to employees in shich hlie sated that, "iftou must be absent. your supervisor must know it prior to the start ot his shift so plans can be made to cover your job. In the paist. II has sometimes been difficult for many of you to get a call through into the plant to report that you are going to be absent. Therefore, effective tod, ;ia ntes sstell is being implemented to provide you with a faster lmecthod ot reportilig your absence. This week, you will get from your ,upervisor .1 sticker to be placed on the back of) your badge. This sticker will plos ide o)ou ith a number to call if: lor some reason you are going to be obtaining the beer. The meeting at Neff's broke up about 7 or 8 p.m. Smith went home. 4. Events of June 3, 1974 Since company policy required headquarters clearance for the discharge of a chief steward, Manty and Pond went to Respondent's headquarters in Highland Park early in the afternoon of Monday, June 3, to confer with Thomas Miner, Chrysler's manager of labor relations of the United States and Canada, and Frank Valle, manager of hourly labor relations. The latter officials agreed that Smith should be discharged and that the discipline proposed for 81 others involved in the Friday "sickout" should be imposed. However, they required that discipline be deferred for a week. Miner and Valle had previously been in contact with UAW officials concerning this question. All ranking union officials were then at the Los Angeles convention and were not expected to return to Detroit until the end of the week. Accordingly, the Union requested that Respondent postpone any discipline until union officials returned. Respondent's management fully expected to "lose the plant," i.e., experience a general walkout at Warren Truck, when Smith was discharged, so it willingly acceeded to this request. Before he left Warren Truck for Highland Park, Manty had asked Labor Relations Representatives Grier and Leon Lucas to go to Gate 2 to tell Smith to report directly to the labor relations office when he came to work. Grier relayed this message to Smith. Smith arrived about an hour or more in advance of the scheduled reporting time and remained in the company parking lot until almost 3:30 p.m. A group of employees gathered about him. He was seen going up to various persons who were arriving for work and summoning them to the gathering. Just before 3:30, a group of people which was variously estimated at between 30 and 75, walked together into the plant and arrived at the door of the personnel office. Plant Manager Kahle and various labor relations representatives were there. The scene was one of some confusion. Employees were hollering, "If Smith goes, we all go," and were making other statements to that effect. Smith spoke to management personnel who were present, demanding amnesty for himself and for all who had participated in the Friday sickout. He repeatedly insisted that a company commit- ment be made to this effect. He was told only that there would be no discipline at that time. Two union shop committeemen, Gil Wojcik and Glen Kothe, appeared on the scene and urged Smith to get his people back to work. late or if you cannot come at all. Several direct telephone lines into the individual departments where you work have been installed which will allow you fast response. All of you are obligated to call the plant prior to the start of the shift when an emergency occurs that will prevent you from reporting to work." This notice was posted on employee bulletin boards throughout the plant. The back of every employee badge contained a statement toi the effect that "If your absence is a must, call (a seven-digit number) to report your absence or tardiness." Smith testified that there was no rule or requirement that employees phone in unless they were going to be absent more than 5 days. The above-noted written requirements. applying not only to absences but even to expected tardiness, flatly contradicts Smith's testimony. All agree that a system exists pursuant to which any employee who called in received a call-in number which would then serve to verify the fact that he or she complied with the requirement. In light of these considerations, I must discredit Smith's testimony on this point. 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith's reply to Wojcik and Kothe was that this incident was none of their business. Labor Relations Representative Lucas reminded Smith that he was a steward and also insisted that he get his people to go to work. During the confrontation, the buzzer sounded signifying the start of the second shift. When the employees became satisfied that no discipline would be invoked that afternoon, they returned to work. They punched in on an average of 7 minutes after the buzzer. On the same evening, Smith received a call at the plant from California from UAW-Chrysler Department Interna- tional Representative Richard A. Ruppert. They spoke at some length about the events which had taken place. Ruppert reminded Smith that the Union had promised to take a strike authorization vote in his department. Smith's reply was that people were very excited and he did not know if he could control them. Ruppert's admonition to Smith was that, if Smith could not forestall a walkout, he should make sure that he did not lead it. 5. The June 9-14 events By Sunday, June 9, most UAW officials had returned to Detroit from California. A special meeting of department 9110 employees was held on Sunday morning at the Local 140 hall. At this time, several International officials spoke and told the assembled employees that the Union was trying to assemble a strike package 13 which would be the subject of a strike authorization vote. Smith stood up and spoke at the meeting, accusing union officers of collaborat- ing with Chrysler in whitewashing grievances which had been filed. Region One UAW International Representative John Cooper attended this meeting and urged the employ- ees who wanted to strike Warren Truck to follow the procedure outlined in the contract and the UAW constitu- tion. The audience reply to Cooper - one with which Smith concurred - was "To hell with procedure. We want a strike." 14 On the afternoon of Monday, June 10, Smith was called into the labor relations conference room at Warren Truck and was discharged. Present at this interview with Smith were Body Shop Production Superintendent James A. Wolfe, Local 140 President Arthur Harvey, and Grier. Wolfe read to Smith the supervisor's report which called for Smith's discharge for participation in and leadership of an unauthorized work stoppage on May 31 and June 3. Smith was discharged and escorted from the plant. On the same afternoon, three other individuals who participated in the demonstration of June 3 - Rivard, Biechler, and Forman - were discharged for participating in the demonstration and brief work stoppage which occurred on that day. Within 2 hours after Smith left the plant on the afternoon of June 10, employees began filing out in large numbers. For the next 3 days, a wildcat strike took place which had 13 The grievance procedure outlined above permits a strike during the contract term under certain limitations. One of the requirements is that the International - not the local at the plant in question - forward to the Respondent a "seven day letter" in which it outlines and specifies the gnevances over which the strike will take place if such grievances are not resolved in the course of seven days of bargaining. Assembling a strike package simply means doing the "homework" that is necessary to identify and substantiate the grievances which are causing in-plant unrest. These the effect of shutting down the entire Warren Truck operation on both shifts. All sides agree that Smith was an active participant and the leader of the wildcat strike which took place following his discharge. On the Monday evening when the strike began, about 250-300 people went to the union hall. Smith informed them that he had been fired and voiced the opinion that he would never get his job back except through strike action. Smith stayed at the hall most of the night, organizing groups and committees for the purpose of carrying on the strike. On the following morning, the strikers established picket circles at all of the entrance gates to the plants and urged employees to refrain from reporting. The strikers handed out a mimeographed sheet, reciting the events of the May 31 strike and the events of the ensuing week and the fact that Chrysler had fired four employees because of previous walkouts. It called upon all employees to unite in the defense of the metal shop workers and asked employees to go straight to the union hall rather than going to work. Employees began congregating at the union hall. UAW Regional Director George Merrilli spoke to them and urged them to return to work. They refused so the UAW leadership closed the hall. The Union also stationed union officials at plant gates during reporting hours for the purpose of urging employees to report to work. It also distributed a pamphlet urging workers to return to their job. During this week, the strikers distributed another and lengthier sheet which, among other things said, "People in key Chrysler areas like Dodge Main, Chrysler Engine, Warren Stamping, Jefferson, Lynch Road, Eldon Forge - we urge [you] to support our walkout actively any way you can in your own plants." 15 Chrysler sought and obtained from the Circuit Court of Macomb County a temporary restraining order directed at the UAW, its officers, and various named and unnamed individuals, requiring an immediate cessation of the strike and withdrawal of the picket lines. A hearing on a preliminary injunction was set for Friday afternoon, June 14. Copies of the temporary restraining order were served on Smith on four different occasions and upon other strikers as well, but the strike continued. On Thursday afternoon, June 13, Hon. Hunter D. Stair, Circuit Judge for Macomb County, came to the plant and held court in the company parking lot. He was seated on the flat bed of a company truck which was driven by Respondent's person- nel manager and was flanked by various UAW officials who were sitting on the truck bed with him. Dressed in his judicial robe, Judge Stair spoke through a bullhorn to Smith and to other strikers, ordering them to cease their activities and to comply with the order which he had issued. Smith was standing outside the fence of the plant and shouted back to the judge with the use of a bullhorn that the court order was illegal and that the strikers would continue to disregard it. Judge Stair then ordered the arrest items are thus noted in the "seven-day letter," and form the basis of the bargaining during the 7-day countdown. 14 A frequent theme used by "On the Line" and the "Unity News," which were disseminated (and often edited) by Smith, was that "Your procedure is our chains." i5 While employees at other Chrysler locations did not respond to this call, it is true that, during the summer of 1974, Respondent experienced a number of heat walkouts at various of its Detroit area plants. 472 CHRYSLER CORPORATION of Smith and a large number of strikers. Warren police arrested Smith and about 20 other strikers and took them to jail. This action had the effect of terminating the strike. By Friday morning, the plant was back in operation, although leafletting of the plant continued. 6. Poststrike events On June 20, the Union conducted a strike authorization vote of Warren Truck employees which carried by a large margin. In the fall of 1974, it sent Chrysler a "seven-page letter" involving seven issues arising at the Warren Truck plant. Eventually these issues were resolved by negotiation. Chrysler discharged some 78 people (including the 4 initially discharged on June 10) who were involved in the June 10-14 walkout. All of these discharges were grieved; 61 individuals were restored to duty at the plant level; 17 cases were referred to the appeals board. After a consider- ation discussion among Chrysler and UAW officials, the appeals board restored 4 more employees to duty and the International determined, in October 1974, not to take the 13 remaining cases, including Smith's, to the impartial chairman, because it felt that the conduct of these individuals during the week of June 10-14 precluded any possibility of reinstatement under the grievance procedure. Smith continued his activities, publishing and distributing pamphlets protesting both the Union's actions and the Company's actions. Late in the fall of 1974, he held a rally of employees in the parking lot. In 1975, he ran as a candidate for the president of Local 140 and received 40 percent of the votes cast. However, he was ultimately unsuccessful in this effort. 7. Removal of Smith from the premises on May 10 and October 11, 1976, and events leading thereto On February 3, 1976, Smith was found guilty in Macomb County District Court of assaulting a Chrysler security guard who was attempting to remove him and his sound amplification equipment from the parking lot of the Warren Truck plant. In an order, dated March 10, 1976, denying Smith a new trial, the Michigan State District Court Judge wrote that Smith was lawfully on the parking lot at the time of the incident in question by virtue of unspecified provisions of the National Labor Relations Act. Respondent has long claimed difficulty in obtaining assistance from the police of the city of Warren in removing trespassers from its premises. In April 1976, it was successful in prevailing on the city council to enact a municipal ordinance, which took effect May 3, forbidding trespassing upon the lands or premises of another person. The ordinance required that the premises in question be posted with signs forbidding such trespassing as an element of the offense. The arrangement of the parking lots at the Warren Truck plant permits general and unlimited access from public roads. No one is obstructed or physically restricted in driving from a public highway into the lots. After parking, an employee or any other person who seeks entrance to the Is It was Smith's position that the Ford contract was "a foot in the ass, not a foot in the door," as contended by vanous UAW officials. The plant must walk past a guard post, at which point he must exhibit an identification badge or have other authorization which permits him to enter the plant. Early in May, Respondent posted on the fence of the parking lot a sign which read: Private parking for employees of Warren Truck Assembly Plant, Chrysler Corporation. All others using this property are hereby given notice that they are trespassing and in violation of S. 242 and S. 243 of the Code of Ordinances in the City of Warren. On May 10, 1976, Smith went to Warren Truck's parking lot in the middle of the afternoon and was talking with Clarence Williams, an employee, about the forthcoming national contract negotiations in the auto industry and was giving Williams some literature expressing a point of view concerning national contract proposals. As he was talking to Williams, Smith was approached by plant guards and members of the labor relations staff. They told him that he was trespassing and directed him to leave the premises. Smith replied that he was engaged in distributing literature concerning the forthcoming contract negotiations and that he was protected in this effort both by the National Labor Relations Act and by Respondent's shop rules. Lucas, one of the management representatives present, replied that Smith was no longer an employee and therefore he no longer had the right to be on the premises. They all pointed to the "No Trespassing" sign which had been posted and told Smith that if he remained he would be arrested. Smith replied that they were merely compounding the unfair labor practice of preventing him from distributing litera- ture, but left without further incident. On or about October 11, 1976, Smith again visited the premises to distribute literature in the parking lot at the shift change. At this time several other persons were distributing literature with him. Some were employees and one other was not. The literature in question was a pamphlet entitled "Unity News." The subject of the pamphlet was a dispute which took place at a Local 140 meeting over the ratification of the proposed Ford-UAW agreement, which purportedly would serve as a model for negotiations between the UAW and other car manufactur- ers.'6 The pamphlet protested the efforts of union leader- ship in seeking to obtain approval of the Ford contract, and noted that a fist fight had occurred between local officials and followers of Steve Smith during a discussion of this question at a meeting of Local 140. Respondent's agents called the police and went to talk to various literature distributors. They permitted persons who were known to be employees (or who identified themselves as such) to remain and distribute literature but had Smith and one other nonemployee arrested and removed. Smith was formally charged with trespassing. His case is still pending in the state district court. pamphlet went on to analyze certain asserted deficiencies in the proposed agreement. 473 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Analysis and Conclusions 1. The discharge of Stephen S. Smith It has been long and well established, by both the Board and the courts, that an employer may lawfully discharge an employee for engaging in a strike which is forbidden by the provisions of a no-strike agreement, because such activity is not protected by the Act.'7 When such a stoppage, normally called a wildcat, occurs, an employer is free to pick and choose whom he will fire and whom he will reinstate after the strike, so long as the basis for the selection is not discriminatory, J. P. Wetherby Construction Corp., 182 NLRB 690, 697, fn. 31 (1970); American Beef Packers, Inc., 196 NLRB 875 (1972). Smith's discharge notice stated that he was being discharged for "participa- tion in and leadership of an unauthorized work stoppage." Either type of activity - mere participation or active leadership - is in and of itself sufficient grounds for removal. Both the General Counsel and the Charging Party concede, as indeed they must, that the walkout or "sickout" of more than 80 second-shift employees in department 9110 on May 31, 1974, was a violation of article 5 of the National Chrysler-UAW contract. Nor is there any question from the evidence that Smith was physically in the company of the strikers during the entire period of their unprotected activity. General Counsel and the Charging Party attempted to avoid the inevitable impact of settled law upon admitted facts by claiming that Smith was not obligated to be at work because of illness, that his discharge was the product of disparate treatment of Smith vis-a-vis other employees, and particularly other chief stewards who in the past have engaged in unlawful strikes and have gotten away with it, and that the asserted ground for discharge was pretextual. I will proceed to each of these replications in that order. Smith chronically suffered from bronchitis. Despite his recurring problem, he continued to work for 4 years in department 9110,18 where assertedly plant fumes were too noxious on May 31 to permit him to go to work. Indeed, the physical exertion involved in his routine duties was minimal, since Smith, a shop steward, was entitled to spend his day adjusting grievances rather than welding. The flare- up of this ailment on this particular date, when a wildcat strike was clearly anticipated, is at least a curious and convenient coincidence which Smith documented very well, first at the company clinic and then with his own physician. However, he took none of the routine precau- tions which one might expect from a person who had a bona fide ailment. Instead of rest and relaxation,' 9 he chose to take part in a wildcat strike. Instead of avoiding noxious fumes, he went to two barrooms in the course of 3 hours where he drank beer and inhaled large amounts of noxious tobacco smoke. The antibiotic and the expectorant which his physician prescribed called for periodic doses 1T N.L.R.B. v. The Sands Manufacturing Co., 306 U.S. 332 (1939); N.L.R.B. v. Magnavox Company of Tennessee, 415 U.S. 322 (1974); N. LR.B. v. Rockaway News Supply Company, Inc., 345 U.S. 7 (1953); Russel Packing Company and Peerless Packing Company, 133 NLRB 194 (1961); Alton Box Board Company Container Division, 155 NLRB 1025 (1965); Stop & Shop, Inc., 161 NLRB 75 (1966); Chesty Foods, Division of Fairmont Foods Company, 215 NLRB 388 (1974). every 4 or 6 hours. However, Smith did not bother to have the prescriptions filled or to take the medicine prescribed for nearly 24 hours after consulting his physician. Contrary to Smith's testimony, the Respondent did have a routine and well-defined procedure which employees were required to follow if they were expected to be absent or even if they were even expected to be late to work. Some of the employees engaged in the "sickout" of May 31 gave colorable compliance to this procedure by calling in, albeit from a bar, to let the Company know that they were too ill to work. However, Smith made no effort in this regard. Hence, he can hardly claim benefit for an absence from duty due to illness when the total course of his behavior belied the existence of any genuine sickness serious enough to warrant his absence and when he failed to comply with what Respondent regularly required of employees with genuine illness. What is dispositive of this contention by the General Counsel is that Smith was not discharged for an individual act of absenteeism - for laying out sick. Were this the ground on which Respondent effectuated Smith's removal, it might be necessary to look more closely at whether Smith's symptoms truly prevented him from coming to work in a smelly shop. Respondent did not discharge Smith for nonfeasance but for an affirmative act of misfeasance. He was discharged for active participation in a plan of concerted action with other employees and for lending to that activity both impetus and direction. A claim of sickness, whether real or bona fide, can hardly serve as a shield for such an active wrongdoing, any more than sickness could serve as an excuse for assaulting a supervisor or vandalizing company property. Smith was not a mere bystander to the activity here in question. He did not suffer the misfortune of finding himself at the wrong place at the wrong time, only to be swept along with the crowd. I discredit Harig's statement that some of the more activist members of department 9110 did not want Smith to be present at their meeting at the Keweenah Bar because Smith was not militant enough for them. Smith and almost everyone else on the second shift in department 9110 knew in advance of the impending meeting and Smith actually urged one of his followers, Olivia Fawlkes, to be present. Despite his asserted illness, Smith went from the doctor's office to Keweenah because he felt he should be present during the discussion of grievances. During the course of the activity, he bought drinks and mingled with his constituents. When they were all ordered from the Keweenah, it was Smith who arranged an alternative location for the strike meeting, rather than insisting that his constituents return to work, as did two other union officials who addressed them during the course of the afternoon. While at NefWs Lounge, Smith gave some order to an otherwise unstructured gathering. He asked one striker to take notes, he quieted individuals so that the Local's vice president could be heard, and he introduced him. Smith also took charge to the extent of organizing a 1s At one time, Respondent furnished Smith with an inhaler which he could wear at work to protect himself from bothersome fumes. Y9 Dr. Salomon testified that his normal advice to a person suffering from bronchitis is to go home, get plenty of rest, take plenty of fluids, and use the medicine prescribed. On May 31, he did not actually tell Smith to go home. 474 CHRYSLER CORPORATION picnic of strikers to take place a few days later. Smith was a dexterous and agile political figure within Local 140. It is clear that if the factional activity on May 31 was not completely under his control at the beginning, it was certainly his show by the end of the evening, and every effort which he made during the course of the "sickout" was designed to assure this conclusion. Smith's followth- rough activities on the following Monday of assembling employees in the parking lot, marching en masse to the Labor Relations Office, and then serving as their spokes- man to demand amnesty not only for himself but also for everyone involved in the affair leave no doubt whatsoever of his leadership role on May 31.20 Smith was elected to his position as shop steward by the second-shift employees in his department on two occa- sions. He did not cease to be a leader of these people in matters involving labor relations merely by leaving the plant gates. Others, including Respondent's officials, had every right and reason to regard Smith as the leader of any gathering of department 9110 employees regardless of where it took place, especially if no other union officials were in the area. Smith regularly spoke for such employees in the plant during short walkouts which had occurred from time to time and he had adjusted these problems when they arose. One of Smith's admitted reasons for coming to the Keweenah instead of going home was that grievances were going to be discussed. It was Smith who was contractually responsible for processing grievances for department 9110 employees at the first step and who was looked to by employees for this purpose. Not long before the May 31 walkout, it was Smith who informed Manty in the course of a private conversation that department 9110 employees were getting angry over the failure of Respon- dent to adjust grievances and that they were going to take drastic action and were willing to incur possible disciplin- ary action to resolve these matters. Accordingly, in light of considerations relating to his status alone, in addition to his actions on the afternoon and evening in question, I conclude that Smith not only was engaged in an illegal walkout but that his presence provided this action with his active approval and encouragement, not merely negative leadership, and that Respondent had ample basis for concluding that Smith exercised a leadership role in the walkout when it determined to discharge him on May 31. The contention that disparate treatment was accorded to Smith is unsupported. A total of 82 employees were disciplined for the May 31 incident. While Smith was the only one to be discharged, he was not the only one to be disciplined, and the severity of this discipline vis-a-vis others is easily explained by the leadership role which in fact he exercised. It is true that, on some other occasions, Respondent has not discharged other chief stewards in some walkout situations. The reference made by the General Counsel is to the "jump the gun" walkouts which occurred in September 1973, at the end of the 1970-73 20 As noted previously Respondent places heavy reliance on what it terms "negative leadership," a concept derived from a series of arbitration awards. With all due respect to these arbitration awards, the impartial umpire who rendered them was called upon to construe and apply a contract, not the National Labor Relations Act. In construing the Act, the Board has expressly avoided sanctioning any reliance in discharge cases on negative leadership by a shop steward, because such a concept would contract. However, Respondent placed in the record arbitration awards going back many years showing that Respondent has frequently and successfully discharged chief stewards in illegal walkout situations occurring during a contract term, and that Smith's position is not perceptibly different from that of others who experienced similar treatment in the past. One can hardly argue disparate treatment unless the alleged discriminatee is singled out for special and unique treatment in contrast to others who were similarly situated. The record herein contains the tales of too many other chief stewards who were discharged for leading illegal walkouts to make such a contention stick. The General Counsel's third attempt to avoid the conclusion that Smith was lawfully discharged for engaging in and leading a wildcat strike is that the asserted reason proffered by Respondent for the discharge was not the real reason, but is merely a pretext which has been served up to cloak its abiding desire to get rid of an aggressive steward. I credit the several statements in the record that, over a period of years, Respondent's management personnel, including some of those who were closely connected with the discharge decision, had from time to time referrred to Smith in disparaging terms and that one or more had, during this same period of time, expressed the hope and the desire that Smith could be terminated. Such evidence is often the stuff of which a valid claim of pretext is made. However, the question of pretext normally arises when an employer who is animated by antiunion considerations seizes upon a long-tolerated habit or practice or upon an accidental occurrence or happenstance to rid its company of any unsuspecting union activist, when the individual in question was unaware that this act or omission was a dischargeable offense. The description does not apply to the events which governed Smith's termination. He was not caught in a web of circumstances which was beyond his control or of which he was unaware. In this case the events which formed the predicate for Smith's discharge were completely within his own personal control. Smith deliberately opted for the course of conduct which led to his termination after having been squarely placed on notice of the consequences of continuing to do what he was doing. He voluntarily attended the meeting which took place at the Keweenah Bar rather than going home to attend to his asserted illness. When a wildcat strike was plainly in the works, Manty confronted Smith twice and warned him once as to the possible consequences of his actions. Instead of taking advantage of this notice to back off and either go to work or leave the crowd of strikers, Smith persisted in a course of conduct which predictably led to his termination. Both before and after his discharge, he engaged in a continuing power play with Respondent. By engaging in labor relations brinksmanship, he willingly incurred the risk of what ultimately occurred. impose different and greater statutory responsibilities upon an employee who engages in protected activities as a chief steward than one who exercises Section 7 rights in a rank-and-file position. The Act allows for no such disparity. Pontiac Motors Division, General Motors Corporation, 132 NLRB 413 (1961). Accordingly, I place no reliance on this feature of Respondent's defense in arriving at the decision in this case. 475 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Giving a warning before acting is wholly inconsistent with the notion of pretext. The fact that Smith's affirmative conduct, even in the absence of a warning, clearly left him vulnerable, and the fact that Respondent made an initial determination to fire him immediately after Smith refused to heed Manty's warning is further evidence that Respon- dent's asserted reason for firing Smith was its real reason. Whether Respondent is happy that Smith, an aggressive shop steward, is no longer in its employ is not a matter which establishes discriminatory motivation.2 ' The effi- cient cause of Smith's demise was Smith's own deliberate choice of alternatives. In light of these considerations, I conclude that so much of the amended complaint which alleges that Stephen S. Smith was discharged in violation of Section 8(a)(1) and (3) of the Act should be dismissed. Respondent makes certain additional arguments in defending its action which need not be passed upon. As I have concluded that Smith was lawfully discharged because of his activities on May 31, it is not necessary to determine whether his leadership of a demonstration in front of the Labor Relations Office the following Monday also constituted a violation of the no-strike provision of the national agreement and a further ground for discharge.2 Respondent also argues that Smith's postdischarge conduct should disqualify him for reinstatement, even if he were discriminatorily discharged. It argues that Smith's conduct during the week of June 10-14 in inducing and encourag- ing an illegal wildcat strike of 6,000 Warren Truck employees and the contumacious attitude displayed in defying state judicial process until he was arrested and physically removed from the picket line serve to disqualify him from further employment irrespective of the validity of the discharge. In light of the above findings and conclu- sions, these questions need not be reached. 2. The removal of Smith from company premises in 1976 as a 8(a)(1) violation The General Counsel contends that Respondent unlaw- fully removed Smith from its parking lot on May 10, 1976, and again October 11, 1976, when Smith was distributing literature relating to the negotiations of the 1976 contracts in the auto industry. His argument is that Smith, a discriminatorily discharged employee, was nevertheless an employee at the time in question and hence was entitled to engage in protected activities and union activities on company premises during nonworking time and in non- working areas. In support of this contention, he relies on a line of Board cases having their origin in the Supreme Court's seminal decision of N.L.R.B. v. Babcock & Wilcox Company, 351 U.S. 305 (1956). While I agree with the General Counsel's ultimate conclusion, I must arrive at the conclusion by a different route. The General Counsel placed in evidence Respondent's "Guide to Good Conduct for Chrysler Employees," which outlines a list of forbidden activities for Chrysler employ- 21 Alion Box Company, supra, and many other cases. 22 The fact that the Respondent, in deference to a union request, postponed Smith's discharge for a period of a week to allow union officials to return to the city does not affect the validity of the discharge or amount to a condonation of Smith's activities. See Fairmont Foods Company, Inc., supra. From the outset, Respondent was apprehensive that Smith's discharge ees. The guide lists as examples of misconduct "unautho- rized solicitation, except such solicitation during employ- ees' non-working time as is protected by the National Labor Relations Act," and "unauthorized distribution of literature, except such distribution during non-working time in non-working areas as is protected by the National Labor Relations Act." In a decision which was issued after the close of the hearing in this case arising in Chrysler's Eight Mile Road Stamping Plant, located a short distance from Warren Truck, the Board found such rules were invalid because of vagueness. Chrysler Corporation, Eight Mile Road Stamping Plant, 227 NLRB 1256 (1977). However, in light of the conclusion herein that Smith was lawfully discharged on June 10, 1974, it follows that he could not claim benefit of the Board's recent decision in regard to his 1976 actions. In 1976 he was not an employee but a stranger at the Warren Truck plant. Accordingly, his standing vel non to distribute literature on company parking lots on the dates in question must be governed by the law concerning the validity of nonaccess rules rather than the validity of no-distribution rules relating only to employees. Respondent concedes that its rules did not prohibit employees from distributing literature in the parking lot on the occasions in 1976 when Smith was removed, although its earlier actions in preventing Smith from engaging in distribution when he was employed by the Respondent were not consistent with this concession. 23 Respondent placed on the stand management witnesses who stated that it had always maintained a policy forbidding nonemploy- ees from coming on to company parking lots at Warren Truck to distribute literature or to transact business unrelated to the manufacturing of trucks. Until May 1976, when it posted a no-trespassing sign following the enact- ment of the Warren city ordinance, Respondent had never reduced this policy to writing or promulgated it in writing in any way. On the contrary, there is abundant testimony from several witnesses that the Warren Truck parking lot was the regular scene of all manner of commercial and other activity unrelated to the manufacturing activity of the plant. Respondent's former labor relations representative, Grier, now a Wayne County deputy sheriff, testified that one could buy anything he wanted on the company parking lot, including alcohol and narcotics. I also credit record testimony that farmers came to the parking lot from time to time to sell produce to Chrysler employees and the parking lot was a beehive of activity, especially during summer months and particularly during meal breaks and at the change of shift. Employees phoned out for pizzas which were delivered to them in the parking lots by pizzeria employees during their lunch breaks. Chicken dinners, shrimp dinners, and other delicacies were available at this place from outside caterers. On one occasion during the 1976 presidential campaign, a supporter of the Carter- Mondale ticket stood on company premises near the guard shack and handed out to employees bags of peanuts would trigger a general walkout at Warren Truck and wanted union officials to be on hand in this eventuality to lend moral support to its efforts to enforce the national contract. The prudence of this action was borne out by the events of June 10-14. 23 Several witnesses testified that the company rules prohibited any distribution of literature on company premises by employees. 476 CHRYSLER CORPORATION containing presidential election propaganda. The record is unclear whether this individual was or was not a company employee.24 The record is quite clear that, during the early morning reporting hours, an outside vendor regularly stands on company premises near the guard shack, and, in addition to stocking a vending machine with newspapers, sells copies of the Detroit Free Press to plant-bound employees as they pass. If Respondent ever had a policy of nonaccess to the Warren Truck plant parking lot by outside individuals, it was a policy honored more in the breach than in the observance. In light of testimony to the contrary, which I credit, and of record exhibits which include a photograph of a newspaper vendor selling papers to incoming employ- ees, I discredit testimony of company officials that it regularly maintained a nonaccess policy prior to May 1976, and I find incredible certain self-serving statements which they made in the record that plant management did not know that the above-recited commercial activity was going on right under their noses, when the existence of such activity was apparently common knowledge to everyone else at the plant. Respondent tried to draw some distinction between its asserted nonaccess policy before May 1976, and after that date, when the Warren city ordinance was in effect. Respondent concedes that, before this time, outside vendors visited its premises but contends that it was powerless to do anything about it because the city police would not cooperate when Respondent made trespassing complaints. With its many resources and its large comple- ment of plant protection personnel, Respondent had no difficulty in preventing pedestrian trespassers from ventur- ing beyond the guard shacks and into the plant buildings. It failed to explain why the same protection could not be and was not established at the entrances to its parking lots if, in fact, it had any active desire to enforce a general nonaccess policy. A claim that it could not enforce it in the absence of a city ordinance is insubstantial and amounts to a concession that its regular practice was to permit outsiders to visit its parking lots on a whole host of errands unrelated to making trucks. On at least four occasions before he was discharged, Smith was prevented by Respondent's management or plant guards from distributing literature in nonworking areas on nonworking time. In March 1972, he was prevented from distributing campaign materials in support of his candidacy for UAW convention delegate at the compact building adjacent to the main Warren Truck plant. In May 1973, he was prevented by plant guards from distributing UAW election literature near the union election polling places located in two trailers which were parked on company premises. In the fall of 1973, during the UAW strike at Chrysler, company employees were being paid at trailers parked on company parking lots. Smith was prevented by Labor Relations Supervisor Lucas from disseminating to employees who were reporting for pay some literature opposing the ratification of the proposed UAW-Chrysler contract. In April 1974, Smith and a campaign supporter were prevented by plant guards 24 Respondent has also permitted Local 140 to park trailers on company parking lots which were used as voting booths at internal union elections. from distributing campaign literature urging his election as convention delegate to employees in the parking lot near the compact building. While these episodes are not alleged to be unfair labor practices, they do evidence a company practice aimed specifically at Smith which was designed to prevent him from engaging in protected activities even before his discharge, irrespective of what its general rules, practices, or policy might have been. There is little doubt that the general tenor of remarks contained in the pamphlets and papers distributed by Smith over the years has been scurrilous, inflammatory. and in the view of some, insurrectionary. However, his right to distribute material on company property, either as an employee or as a nonemployee, cannot turn on the nature of the comments contained in the literature or on the writer's mode of addressing a subject, so long as the literature deals with wages, hours, and terms and condi- tions of employment. United States Metals Refining Company, 218 NLRB 841 (1975). It is clear that Smith's pamphlets not only touched upon these subjects but also hit them hard. Unlike many discharged employees, Smith pursued his union activities long after his termination. In the late winter of 1975-76, these activities lapsed over into criminal conduct when he assaulted a plant guard on company property. As the result of a posttrial motion aimed at overturning a conviction for this offense, Smith obtained some dicta in a state district court opinion to the effect that he had a legal right to disseminate literature on company property under the terms of the National Labor Relations Act. Within a month after this opinion was rendered, Respondent was able to prevail upon the city of Warren to enact the no-trespassing ordinance here in evidence which it invoked to remove Smith from the company property in May and again in October. While the ordinance is one of general application and applies to residential as well as to industrial property, it is fair to infer from the evidence in this record that a significant part of the legislative history leading to its enactment involved Respondent's problems with Smith. The only difference noted from this record as to the postenactment existence of a nonaccess rule of general application in Respondent's parking lot is the posting of the sign, referred to above, and one vaguely noted occasion when a plant guard asked a vendor to leave the premises. The Free Press vendor continues to sell papers on company property as he had in the past. And there is no indication that the lots are any the less available now than they were previously for the general purchase of pizzas, chicken dinners, and other goods, wares, and merchandise. Accord- ingly, I conclude that when Smith was directed by management personnel to leave the parking lot in May while he was giving literature to another person relating to forthcoming auto industry contract negotiations, and when he was arrested in October for disseminating literature concerning a Local 140 meeting and other matters bearing upon the ratification of a national agreement between the UAW and its 1976 strike target, Respondent was not uniformly and evenhandedly enforcing a no-access rule Most Local 140 members are Chrysler employees but by no means are all of them Warren Truck employees. 477 DECISIONS OF NATIONAL LABOR RELATIONS BOARD designed to keep all nonemployees from its premises. It was then, as before Smith was discharged, singling out Smith and Smith's literature for proscription from its premises. Accordingly, Respondent's actions on these occasions violated Section 8(a)(1) of the Act. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent Chrysler Corporation is an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union, United Automobile, Aero- space, and Agricultural Implement Workers of America (UAW), and its Local 140, are, respectively, labor organi- zations within the meaning of Section 2(5) of the Act. 3. By removing Stephen S. Smith from its premises on May 10, 1976, because he was engaged in concerted protected activities and by removing Smith and causing him to be arrested on October 11, 1976, because he was engaged in concerted protected activities, Respondent herein violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices have a close, intimate, and substantial effect on interstate commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent herein has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and that it be required to take certain affirmative actions designed to effectuate the purposes and policies of the Act. Since one of the unfair labor practices found herein resulted in an arrest and pending prosecution of Smith for trespassing which was stimulated by a criminal complaint filed by Respondent, I will recommend that Respondent be required to notify appropriate local officials in writing that it has withdrawn its criminal complaint against him. Upon the foregoing findings of fact, conclusions of law, and pursuant to Section 10(c) of the Act, I make the following recommended: 25 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. ORDER25 The Respondent, Chrysler Corporation, Dodge Truck Plant, Warren, Michigan, its officers, supervisors, labor relations representatives, plant protection personnel, and all of its agents, successors, and assigns, shall: 1. Cease and desist from restricting or forbidding the peaceful and orderly distribution in employee parking lots by nonemployees of literature relating to wages, hours, and terms and conditions of employment, and shall cease and desist from the nonuniform enforcement of any rule, practice, or policy restricting or forbidding access to its employee parking lots by persons other than employees who are engaging in activities protected by Section 7 of the Act. 2. Take the following affirmative actions designed to effectuate the purposes and policies of the Act. (a) Notify, in writing, appropriate civil authorities in the city of Warren, Michigan, and/or Macomb County, Michigan, that it is withdrawing a criminal complaint lodged against Stephen S. Smith because of the incident occurring on or about October 11, 1976, at the parking lot of the Warren Truck plant, and send a copy of such notification to Stephen S. Smith or his attorney. (b) Post at its Warren, Michigan, plant copies of the attached notice marked "Appendix."2 6 Copies of said notice, on forms provided by the Director for Region 7, after being duly signed by representatives of Respondent, shall be posted immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that insofar as the amended complaint herein alleges any violation of the Act which has not been found, the amended complaint is hereby dismissed. 2s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 478