Formed Tubes Southern, Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1971

188 N.L.R.B. 12 (N.L.R.B. 1971)

12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Formed Tubes Southern , Inc., and International Un-
ion, United Automobile , Aerospace & Agricultural
Implement Workers of America , UAF. Case 10-
CA-7660
January 25, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 29, 1970, Trial Examiner George L. Powell
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was en-
gaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He also found that Re-
spondent did not engage in certain other unfair labor
practices and recommended that these allegations of
the complaint be dismissed. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief. The General Counsel and the
Charging Party filed briefs in support of the Trial
Examiner's Decision.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner to the extent they are consistent with
the following.
We do not agree with the Trial Examiner's finding
that Respondent discharged employee John C. Dick-
inson for discriminatory reasons because, unlike the
Trial Examiner, we do not believe that the requisite
unlawful motive can be properly inferred from the
circumstances surrounding Dickinson's discharge.
As detailed in the Trial Examiner's Decision, the
record shows that employee Dickinson was an expe-
rienced combination welder who prior to his dis-
charge on October 23 1 had been in Respondent's
employ for a period of over 3 years. Dickinson also
was one of the Union's most active supporters, and
for several months prior to his discharge, Dickinson
had been openly engaged in union organizational ac-
tivities in Respondent's plant. Respondent admittedly
was aware of Dickinson's union activities.'
1 Unless otherwise indicated , all dates occurred in 1968
Although Respondent's discharge of Dickinson
was with full knowledge of his union activities, there
is no direct evidence which would establish that
Respondent's action was motivated by unlawful con-
siderations. However, in evaluating the circumstances
which gave rise to Dickinson's discharge, the Trial
Examiner concluded that the reason offered by Re-
spondent to support the discharge was pretextual,
and, accordingly, he inferred that Dickinson's dis-
charge must have been for discriminatory reasons.
In our judgment, there is nothing implausible in the
explanation offered by Respondent for Dickinson's
discharge. Under Respondent's disciplinary proce-
dures, any improper conduct by an employee would
result initially in a verbal warning being given, and if
a similar offense was repeated the employee would be
given a formal written warning advising him of the
fact that any repetition of this conduct would result
in discharge. Concerning the application of this rule
to Dickinson, the record shows that at some time prior
to June 5, Dickinson, together with several other em-
ployees, was verbally warned to stop the practice of
banging or hammering on the "I.D. spout" during the
course of assembling the exhaust system tubes. When
Dickinson repeated the offense on June 5, he was
given a written warning which described the offense
as, "Excessive abuse of the tubes (hammering on I.D.
spout)." So far as the record indicates, Dickinson re-
ceived no further warnings, either oral or written, un-
til October 23, the date of his discharge. On the
morning of October 23, Dickinson' s first assignment
was to complete a job order which had been started
on the previous shift and involved the preparation of
automobile tailpipes by fitting with metal flanges and
brackets. After welding brackets on some 45-48 tail-
pipes, Dickinson realized that the metal flanges which
he had threaded onto the pipes had been placed on
backwards and that, as a result, the welded brackets
would have to be removed before the flanges could be
put on correctly. Upon learning of the defective work,
Superintendent Morrow summoned Dickinson to his
office and questioned him about the matter. During
the conversation, Dickinson admitted that he had
done the faulty work, but in way of explanation,Dick-
inson told Morrow that he had not been given any
instructions concerning the preparation of the order.
When Morrow asked Dickinson how he could do so
much work without checking, Dickinson replied "that
he was not thinking and his memory was bad." Mor-
row then instructed Foreman Ebel to prepare a warn-
ing slip for Dickinson "to sharpen his memory."
When Dickinson was handed the warning slip, he
asked Morrow, "Does this mean that I've been
warned about the flanges before?" Morrow replied,
2 Apparently, Respondent first learned of Dickinson 's union activities in
April 1968, some 6 months before the discharge
188 NLRB No. 3
FORMED TUBES SOUTHERN, INC.
"No, but we got one in the office that will take care
of that," (the reference being to the earlier written
warning Dickinson had received for hammering on
the I.D. Spout). Dickinson signed the warning slip, as
required, and returned to work.3 Following this inci-
dent, Respondent determined that the most expedient
way to correct the defective work would be to use a
vice to rip off the brackets and weld new brackets in
their place. Although tearing off the existing brackets
would leave a hole in the pipe, L. D. Barnett, the setup
man, determined that the work could be salvaged if
the new brackets were welded on both sides of the
pipe. After receiving permission from Foreman Ebel
to perform the work in this manner, Barnett removed
the brackets from the defective pieces and instructed
Dickinson as to the manner in which the job was to
be redone. Barnett showed Dickinson one of the pipes
he (Barnett) had rewelded, and according to the cred-
ited testimony, Barnett told Dickinson, "that it was all
right to weld on both sides."4 Dickinson then proceed-
ed to redo the faulty work. However in carrying out
the assignment , he welded most of the brackets on
only one side. After Dickinson had welded about 45
pieces, he was told by Foreman Ebel that the pipes he
had done were showing leaks and would not pass
inspection. Shortly thereafter, Foreman Ebel in-
formed Superintendent Morrow that Dickinson had
failed to carry out specific instructions to weld the
new brackets on both sides of the pipe and as a result,
the pipes were leaking. Acting on this information,
Superintendent Morrow summoned Dickinson to his
office. When Dickinson arrived, he was handed his
final paychecks and was told that he had been fired.
Dickinson then asked the reason for his discharge and
he was told by Morrow that the discharge was for not
welding the pipes on both sides. Dickinson made no
reply to Morrow other than to say "Okay" and leave
the plant.
We believe that the foregoing establishes that Su-
perintendent Morrow's decision to discharge Dickin-
son was based upon his (Morrow's) good-faith belief
that Dickinson had failed to follow specific instruc-
tions as to the manner in which the rewelding was to
be performed and, as a result, the completed work was
found to be defective. When Dickinson asked why he
was being discharged, Morrow, in effect, told him it
was because he had failed to perform the job as in-
structed, and, significantly enough, Dickinson did not
dispute this statement. Dickinson's failure to follow
3 Superintendent Morrow testified that under a strict interpretation of
Respondent's rules , Dickinson should have been discharged at this time
because the defective work involving the metal flanges followed the earlier
written warning for hammering on the I .D. spout According to Morrow,
however, he decided to give Dickinson a written warning rather than dis-
charge him because a time interval of 4 months separated the two incidents.
4 If the pipe had not been damaged , the normal practice would be to weld
the bracket on only one side of the pipe.
13
instructions is also the reason advanced by Respon-
dent as the cause of the discharge.5
Although the Trial Examiner accepted the possibil-
ity that Respondent could have had a reasonable ba-
sis for concluding that Dickinson had disobeyed
orders, he found that Dickinson did not in fact inten-
tionally disobey orders and that his alleged miscon-
duct would not have resulted in discharge except for
the fact that he was an active union adherent. In our
opinion, these conclusions are not supported by the
record evidence. First, in assessing Dickinson's work
performance, we are immediately faced with the un-
disputed fact that on three separate occasions his
work was unsatisfactory. Concerning the first such
incident in early June, there is no explanation why,
after being verbally warned about hammering on the
I.D. spout, Dickinson continued the practice. Certain-
ly, as to this incident, there can be no doubt that
Dickinson acted contrary to specific instructions and
that in view of this improper conduct, Respondent
had a legitimate right to issue a final warning notice
to Dickinson. Likewise, we see no justifiable reason
why Dickinson would not be held accountable for his
performance on October 23. With respect to the first
such incident that day, the Trial Examiner apparently
believed that Dickinson's error in putting the metal
flanges on backwards was at least in part explained by
the fact that Dickinson was not instructed as to man-
ner in which the job was to be performed. Yet, we
cannot ignore the fact that Dickinson was an expe-
rienced welder who had performed similar, if not
identical, work on numerous occasions .' Because
Dickinson was an experienced employee, Respondent
could reasonably expect that Dickinson would exer-
cise at least the minimum amount of diligence re-
quired to obtain a clarification of any doubts he may
have had as to the manner in which the job was to be
performed. As a practical matter, Dickinson could
have resolved this difficulty simply by examining the
finished work at his station' or by asking his foreman
or leadman for instructions. The same considerations
are present with respect to the final incident which
served to trigger Dickinson's discharge. Unlike the
Trial Examiner, we find it impossible to believe that
Dickinson could have reasonably thought that he had
5 Although Superintendent Morrow testified that in his opinion , Dickinson
deliberately failed to follow instructions , we can perceive no basis for con-
cluding that Dickinson 's discharge rested upon a determination as to whether
or not his actions were deliberate . On the contrary, Respondent made no
effort to determine whether Dickinson was acting deliberately and in explain-
ing the reason for the discharge to Dickinson , it relied merely on Dickinson's
failure to follow instructions
6 Dickinson could not recall whether or not he had previously worked on
this precise type of job order, although admittedly he had worked on similar
oders
7 It seems apparent that the reason Dickinson was not given specific in-
structions as to the assignment was because the job order had been started
on the prior shift and Dickinson had only to inspect the finished work in
order to determine how the job was to be performed
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discretion to perform the salvage work in the man-
ner he found appropriate. While, under other circum-
stances, Barnett's instruction to Dickinson, "that it
was all right to weld on both sides" might be consid-
ered an ambiguous enough remark to permit an inter-
pretation that Dickinson was free to use his
discretion, no such inference would be legitimate in
these circumstances. This very assignment was made
necessary by reason of Dickinson's earlier error which
resulted in a substantial amount of defective work. If
the Respondent had intended that Dickinson should
use his own judgment in correcting this error, there
would have been no necessity for referring the prob-
lem to Barnett, the setup man, and having him secure
authorization from Foreman Ebel before proceeding
with the salvage work. When Barnett showed Dickin-
son a piece he had repaired and told him, "that it was
all right to weld on both sides," the only logical con-
clusion anyone could have drawn in such circum-
stances was that Barnett was indicating that the defect
was to be corrected in that particular way; namely, by
welding on both sides of the bracket.
While, as our findings indicate, we believe that a
legitimate basis for Dickinson's discharge existed, we
have yet to consider the Trial Examiner's finding that
Dickinson's discharge was a departure from Respon-
dent's normal procedures indicating that Dickinson
received disparate treatment. According to the
Trial Examiner's findings, Respondent did not follow
its established disciplinary procedures in discharging
Dickinson. Specifically, the Trial Examiner points to
the fact that no verbal warning preceded the issuance
of the written warning on the morning of October 23,
and with respect to the incident later that day which
actually triggered the discharge, neither a verbal nor
written warning preceded the discharge. While we
agree with the Trial Examiner that Respondent's dis-
ciplinary procedures call for both a verbal and a writ-
ten warning before discharge action is taken, we think
that in certain other respects he has given too narrow
a construction to these procedures. Thus, under the
Trial Examiner's interpretation separate warnings
would be required unless the offenses were identical
in content. By applying this interpretation to the facts
in this case, the Trial Examiner concluded that the
three offenses chargeable to Dickinson were separate
and distinct because the first involved excessive abuse
of the tubes; the second, putting the metal flanges on
backwards; and the third, failure to weld on both
sides of the pipes. We see no evidence in the record
which would warrant the placing of such a narrow
interpretation upon the Respondent's disciplinary
procedures, and, accordingly, our determination in
such circumstances must be confined to a considera-
tion of the reasonableness of Respondent's interpreta-
tion of its own rules. If, as the evidence indicates, the
immediate reason for Dickinson's discharge was his
failure to follow instructions, then this is the very
same offense that Dickinson was charged with in ear-
ly June, and which resulted in his receiving both a
verbal and a written warning, the latter stating that
any repetition would result in discharge. Even the
intervening incident which occurred on the morning
of October 23 is similar in many respects to the other
two incidents. There, although Dickinson was not giv-
en specific instructions at that time, he was familiar
with the requirements of such a job order, and should
have been aware that he had only to examine the
completed work at his station to resolve any doubts
as to the manner in which the job was to be per-
formed. Significantly enough, Dickinson's explana-
tion for this faulty work was "that he was not
thinking" and "his memory was bad," thereby admit-
ting that the faulty work was caused by his failure to
exercise due diligence. In such circumstances, it is not
surprising that Respondent would consider the inci-
dent on the morning of October 23 to be related in
character to the other incidents where Dickinson
failed to follow specific orders. Therefore, in these
circumstances, we find nothing unreasonable in
Respondent's interpretation of its disciplinary proce-
dures or in their application to Dickinson.' Accord-
ingly, no finding that Dickinson received disparate
treatment can be predicated on this evidence.
Finally, we find no evidentiary support for the Trial
Examiner's conclusion that Respondent did not nor-
mally consider faulty work to be a matter requiring
disciplinary action. This conclusion is based to a large
extent upon the finding that Respondent experiences
a high percentage of defective work and therefore
under a nondiscriminatory application of
Respondent's rules, there should be widespread evi-
dence of employees other than Dickinson receiving
disciplinary warnings. We find no record support for
the finding that Respondent experiences a high per-
centage of defective work.9 On the contrary, Superin-
tendent Morrow testified without contradiction that
less than 1 percent of the goods shipped to customers
are returned as rejects. Nor can we agree with the
Trial Examiner's apparent conclusion that all faulty
work irrespective of the degree of employee respon-
sibility should, under a nondiscriminatory application
s The only clear deviation from established procedures was Superintendent
Morrow's failure to discharge Dickinson on the basis of the incident which
occurred on the morning of October 23, but that is explained by Morrow's
desire to give Dickinson another chance Obviously, such a deviation can in
no way support the Trial Examiner' s finding that Respondent subjected
Dickinson to disparate treatment
9 The Trial Examiner's reliance upon G. C Exhs. 2-5 to establish the
degree of defective work is misplaced. These exhibits, admitted into evidence
over Respondent's objection , are ambiguous on their face , and they may be
reflecting the total number of pieces in an order rather than a specific number
of defective pieces As this ambiguity is neither resolved nor clarified in the
record, we are unable to attach any evidentiary value to these exhibits.
FORMED TUBES SOUTHERN, INC. 15
of Respondent's rule, warrant a disciplinary warning.
Dickinson was discharged not merely because he
produced defective work, but rather because the de-
fective work was a direct result of his failure to follow
specific instructions.10 When considered in this con-
text, Respondent's discharge of Dickinson is certainly
not unique for the record shows that over a period
covering the last 2 years, Respondent discharged eight
other welders and of that number three were dis-
charged for failing to follow instructions or unsatis-
factory work.
Accordingly, in view of the foregoing we find that
the General Counsel has failed to sustain his burden
of proving that Respondent's discharge of employee
Dickinson was motivated by discriminatory reasons,
rather than for just cause." Therefore, as
Respondent's discharge of Dickinson was the only
unfair practice found by the Trial Examiner, we shall
order that the complaint be dismissed in its entirety.
ORDER
The complaint alleged that Respondent had violated Sec-
tion 8(a)(3) and (1) of the Act by discriminatorily dis-
charging employee John C. Dickinson on October 23, 1968;
and it further alleged that Respondent had independently
violated Section 8(a) (1) of the Act by threatening employ-
ees with discharge if they engaged in union activities, by
soliciting employees to spy on union meetings, and by
threatening to prevent an employee from voting in a Board-
conducted election.
On the entire record of evidence, my observation of the
witnesses as they testified,' and due consideration of the
briefs, I find, for the reasons hereinafter set forth, that the
General Counsel has established by a preponderance of the
evidence that Respondent violated Section 8(a) (3) and (1)
of the Act in discharging John C. Dickinson. On the other
hand, I find that General Counsel has not carried his bur-
den of proof relating to the alleged independent violations
of Section 8(a)(1) of the Act. I will recommend that the
violation of the Act found will be remedied by ordering
Respondent to cease and desist from illegal conduct, to
reinstate Dickinson and make him whole for any loss in pay
he may have suffered because of the illegal discrimination,
and to post notices to this effect in its plant. I will recom-
mend that the complaint be dismissed as to the said alleged
independent 8(a)(1) violations.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
10 Even though Dickinson 's faulty work may have resulted in only a mini-
mal cost or expense to Respondent, it is not our function to determine
whether the cost was sufficient to justify Respondent 's action
11 In view of our findings herein , we consider it unnecessary to pass upon
the Trial Examiner's discussion of the nature of rumors contained in In. 8
of his Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner: Upon charges filed
on February 12, 1969, by the International Union, United
Automobile, Aerospace & Agricultural Implement Workers
of America, UAW, herein called Charging Party or Union,
against Formed Tubes Southern, Inc.,' herein called Re-
spondent, the Regional Director for Region 10 of the Na-
tional Labor Relations Board, herein called the Board,
issued a complaint on behalf of the General Counsel of the
Board on November 4, 1969, alleging violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151, et seq.), herein called the Act.
In its duly filed answer, Respondent, while admitting cer-
tain allegations of the complaint, denied the commission of
any unfair labor practices.
Pursuant to notice a trial was held before me in Haley-
ville, Alabama, where the parties were present, represented
by counsel, and afforded full opportunity to be -heard by
examination and cross -examination of witnesses, present
oral argument, and file briefs. Briefs were filed by Respon-
dent and counsel for the General Counsel on January 29,
1970.
'Respondent's name appears as corrected at the trial
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE EMPLOYER AND THE LABOR ORGANIZATION
I find as true the admitted allegations of paragraphs 2 and
3 of the complaint respecting the nature and volume of
business carried on by Respondent, an Alabama corpora-
tion engaged in the fabrication, sale, and distribution of
steel tubing at its principal office and place of business at
Haleyville, Alabama, and conclude therefrom that Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(6) of the Act.
I also find as true the admitted allegations that the Union
is a labor organization within the meaning of Section 2(5)
of the Act.
II UNFAIR LABOR PRACTICES
John C. Dickinson had been hired by Respondent on
February 14, 1965. He was fired by his foreman, Ebel, 3-2/3
years later on October 23, 1968.3 During his period of em-
ployment he had operated a drill press, a grinder, had done
gas welding, and at the time of discharge was a combination
welder earning $2.25 per hour, the highest pay of an employ-
ee short of a leadman. His leadman, Wallace, characterized
him as a good welder.
On October 23 he began his day welding brackets on
automobile tall pipes, a job order that had been started on
the preceding shift. He threaded on the flanges from the
small end of the pipes and welded on some 45-48 brackets
in "about an hour" before he realized he had the flanges on
backwards.° As it was necessary that these flanges be prop-
erly installed, they had to be removed and rethreaded. But
the welded brackets were between them and the small end
of the pipe and had to be removed first. While Dickinson
2 Cf Bishop and Malco Inc, 159 NLRB 1159, 1161.
3 All dates are in 1968 unless otherwise noted
° There is a conflict in evidence as to whether the flanges were on back-
wards or had been left off entirely As in either event the brackets would have
to be removed in order to correct the error and as the General Counsel
conceded that the flanges were on backwards for purposes of argument, I
make the finding they were on backwards
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was removing the faulty pipes from the "buggy" (which
went to the shipping room) and putting them in the "basket"
(where unfinished work or work to be redone is kept) his
leadman , Wallace, came up to him and asked him if he had
done the faulty work. He admitted that he had done so and
was going to tell Wallace about it. Wallace took two of the
pipes and attempted to remove the brackets by burning
them off or cutting them off and grinding down the leftover
metal . While Wallace was so engaged, Foreman Ebel, who
had also noticed the defective work and had reported it to
Morrow, the plant superintendent , came , at Morrow's in-
structions, to Dickinson's work position and without any
discussion of the faulty work took him to Morrow's office.
There, Morrow determined that Dickinson had performed
the faulty work and determined by questioning Dickinson
and Ebel that neither Ebel nor leadman Wallace had in-
structed Dickinson that morning as to how to put on the
flanges . He also asked Dickinson how he could do so many
wrong without checking. Dickinson replied that he was not
thinking and his memory was bad. Morrow had Ebel pre-
pare a warning slip for Dickinson to "sharpen his memory,
who, when tendered the slip, asked, "Does this mean that
I've been warned about the flanges before?" Morrow re-
plied, "No, but we got one in the office that will take care
of that." (Morrow was referring to a written warning given
4 months earlier about hitting the pipe with a hammer in
order to get it into the fig.5 After the conversation, Dickin-
son signed the warning slip and went back to work. (Failure
to sign the warning slip would result in automatic dismissal.)
Tfie Respondent determined that it would be quicker and
cheaper to put the defective pipes in a vice and wring off or
break off the bracket than it would be to cut off the bracket
and grind down the excess metal, even though a small hole
somewhere in size between a dime and a quarter would be
made in the pipe by breaking off the bracket. The setup
man, L. J. Barnett, testified that he twisted off 38 brackets,
gave the job back to Dickinson with new brackets and
showed him how to weld the new brackets telling him "it
would be all right to weld them like this" showing him one
welded on both sides . The brackets had to be welded in such
a manner that there would be no leaks. As Morrow (who
made the final decision to fire Dickinson) testified that
Dickinson was fired for "deliberately failing to follow in-
structions ," it is well to determine just what instructions
were given Dickinson, because Dickinson did not weld all
the pipes on both sides and the majority leaked when tested
under water.
Morrow testified that Foreman Ebel told him that Bar-
nett, after first getting Ebel's approval as to how to weld on
a new bracket, " . . . went back over there to . . .
(Dickinson's) ... station and specifically instructed and
showed him, actually doing one of them himself, welding
this tube and told him (Dickinson)-instructed him to weld
the tube all the way around this bracket in order for it not
to leak, and he failed to do so." This is what Morrow said
was told him.
Barnett's testimony was not so precise. He testified for the
Respondent on direct examination as follows:
Q. After you took ... (the brackets) off, what did you
do?
A. I sent the job back then to John Dickinson and
drawed brackets and showed him how to weld them.
5 Morrow denied telling Dickinson that the written warning about ham-
mering on the pipes , which they had in the office, would take care of a prior
warning about flanges , but I credit Dickinson in this particular As developed
later, the Respondent had a rule about giving an oral warning before a
written warning on the same offense.
Q. Before you showed him how to weld them what
did you, yourself do? Did you weld any?
A. Yes, sir, I welded one. I welded one on both sides
and ... I took it to Jay Ebel and asked him if it would
be all right to weld them on both sides and he said it
would be all right to go ahead and weld them on both
sides; and when I took the pipe back and showed John,
I said it would be all right to weld them like this, and
I left then.
Q. Did you tell him how he was supposed to weld it?
A. Yes, sir, on both sides, like I had welded.
Q. So you told him to weld it on both sides?
A. Yes.
Q. Mr. Dickinson has said that you told him on some
he could do on one side and on some he could do both
sides, to use his discretion.
A. No, I didn't say that.
Q. Your instructions had been to weld it on both
sides?
A. Yes, Jay told me to have him weld them on both
sides.
Q. And you did tell him that?
A. Yes.
Q. Did you leave the job then?
A. Yes, I left the job.
Q. Later on did Mr. Ebel come back to you to
check about this?
A. Later on that evening (before Dickinson's dis-
charge) he asked me if I had told him to weld them on
both sides.
Q. He asked you whether you had told John Dickin-
son to weld them on both sides?
A. Yes.
Q. And what did you tell Mr. Ebel?
A. I told him I had.
On cross-examination, Barnett testified as follows:
Q. You told Mr. Dickinson, if I can quote your testi-
mony correctly, that "It is all right to weld both sides?"
A. Yes, after I went to Jay Ebel and asked him, went
to the foreman.
Q. Isn't it a fact that you didn't say to Mr. Dickinson
anything about welding on one side?
A. No, not after I set one up and welded both sides
myself. I went to Jay Ebel and brought them back and
told him to weld on both sides.
Q. Right, you didn't say anything about welding on
one side.
A. No, I didn't.
Q. All you said to him is, " It is all right to weld on
both sides?
A. Yes.
Further cross-examination of Barnett brought out the fact
that the setup men and the foremen give instructions to
welders as how to do a job and even then the welders ...
"would mess up sometimes ." He knew of no one other than
Dickinson who was fired because of not following instruc-
tions, yet he knew of some who were talked to and warned
and some who were given warning slips but could not
.. call off no particular names or nothing like that."
On redirect examination Barnett again was asked what he
had told Dickinson. His testimony follows:
Q. (By Mr. Hoover [for Respondent]) I am not quite
sure of what Mr. Rolnick [General Counsel ] said, and
I just want to get it straight here. What was the exact
FORMED TUBES SOUTHERN, INC.
thing that you said to John Dickinson when you took
the pipe back there?
A. You mean after I went to Jay?
Q. After you went to Jayy.
A. Well, after I went to Jay I brought the pipe back
which I had welded up on both sides and I told him that
it was all right to weld them on both sides.
Q. Did you go further with that and tell him-
MR LINK- I object.
(By Mr. Hoover) Well, I will ask you to read your
statement . You gave a statement to the Labor Board
earlier?
A. Yes.
Q. Read your statement.
MR LINK- Your honor-
TRIAL ExAMINER. He has testified to two things now.
I was going to ask this anyway; they are similar idea,
but they are not mutually exclusive.
MR HOOVER After all we are here to get the truth.
Let's get it out at this time.
Q. (By Mr. Hoover) Read what you put in your
statement.
A. "I then went back to Dickinson and told him to
put the flanges on the right way and to weld back all
the brackets the same way as Idid. I had welded the
bracket back on both sides of the bracket and I told
Dickinson to weld the bracket on both sides."
Q. Did you specifically tell him to weld them on both
sides?
A. Yes, sir.
Q. In other words you had checked with Jay Ebel
and it was all right to weld it on both sides, but you told
him to weld the thing on both sides?
A. Yes.
Q. Did you at anytime tell him to use his discretion
as to welding it on one side , welding it on the other, or
to weld it both ways, whatever in his discretion he
thought was right?
A. No, I did not say that.
Q. You deny making such a statement , that he could
use his discretion as to how he welded one side or both
sides?
A. Yes.
MR HOOVER Nothing further.
At this point it is well to consider Dickinson's testimony
relating to Barnett's instructions. His testimony on direct
follows:
Q. When Barnett brought the pipes back to you, did
he instruct you how to weld them?
A. Yes, sir.
Q. What were his instructions?
A. To weld the pipe, one on one side and another
one-on both sides-I mean say you've got a flange
there, you weld one on one side and then another
part-you weld it on both sides (indicator ); both sides.
Q. Is that called a flange or a bracket.
A. A bracket; that is what I mean. I don't know what
I said, but that is what I mean.
Q. If the hole that is on the bracket is under the
bracket in any way, do you weld one side or do you
weld both sides?
A. If the hole goes up under the bracket where I can't
weld it, I weld both sides.
Q. If the hole is not under the bracket in any way,
do you weld both sides or one side?
A. One side.
Q. Why?
17
A. Because that is the way they are supposed to be
welded.
Q. Have you ever had to weld brackets where there
has been a hole in the pipe before this?
A. No, sir; I can't recall.
Q. What type of job is it to weld the hole? Will you
explain that?
A. Well, it is according to how big a hole it is.
Q. How big were these holes?
A. From an inch to half an inch. If you've got a hole
half an inch, you have to have a gas welding rod to weld
them with, and the wire welding is so much hotter than
the gas-the gas rod that when you start burning the
rod it just splatters-I mean it looks like a good weld,
but you dust can't tell whether it is a good weld.
Q. And is that the method you were using?
A. Yes.
Q. Could you have used gas welding on it?
A. Yes, sir.
Q. You could have?
A. I could have.
Q. Would you have had to get instructions to use gas
weldin ?
A. Yes, sir.
Q. Or permission?
A. Yes, sir.
Q. Did you get permission?
A. No, sir.
Q. Instead how did you do it?
A. Wire weld it.
Q. Did you work on the pipes that had been brought
back to you by L. J. Barnett that had holes in them?
A. Yes, sir; I welded them up as best I could.
Q. You did them as well as you could?
A. I did them as best I could.
Q. What happened later on that day in regard to
those pipes?
A. Well, when I finished those 45 they checked one
of them and Jay came around there-Jay Ebel, my
boss, came around there where they were checking
them, the inspectors were checking them and he
checked one of them in water and it leaked and he said
then I am pulling your check; so I didn't know what he
meant. He didn't say you are fired or nothing, so Elmer
Wallace come around there and I asked him-I said,
"Am I fired or what?" He said, "I don't know, but I will
find out." He went and he come back. He went up there
and found out for me and he come back around there
laughing. He said, "They want you in the office."
So I went up there, and I stood there a while and Don
come out and gave me my checks-he gave them to Jay
and Jay gave them to me. I said, "Am I fired," and he
said, "Yeah."
s
THE WITNESS Don give my checks to Jay Ebel and
Jay Ebel gave them to me.
Q. (By Mr. Rolnick) Go ahead.
A. And I asked him, I said, "What for?" And he said,
"For not welding them pipes." I said, "Well, what do
you mean?" Well, I asked them-that's it- I mean.
Q. What did he say to you? Did he tell you why or
what was wrong with the pipes?
A. For not welding them on both sides.
Q. Did he tell you how many of the pipes had leaked?
A. No, sir.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you tell you had tried to follow Barnett's
instructions?
A. No, sir.
Q. Why did you not tell him?
A. Well, I was done fired and I didn't see the point
in trying to tell him anything. I mean they had done
made up their minds, so I said, "Okay," and I left.
Conclusions as to Barnett's Instructions
It is interesting to note that each time Barnett first an-
swers what he told Dickinson he testifies that he told Dick-
inson that it was all right to weld on both sides. Then when
led by Respondent's counsel he testified that he specifically
told Dickinson to weld on both sides. Dickinson himself
testified he was told to weld on both sides and then ampli-
fied his answer to mean that when the bracket was over the
hole he had to weld on both sides to stop leaks, but other-
wise a weld on one side was sufficient. Apparently the prac-
tice in welding brackets on the pipes (when there were no
holes) was to weld them at one spot only. This is borne out
by the fact that Barnett got "permission' from the foreman
to weld on two sides and the fact that only one hole ap-
peared when the brackets were "wrung" off the pipes. Bar-
nett denied telling Dickinson he had discretion although
Dickinson testified that he had been told he had discretion.
After carefully watching these men as they testified, and
bearing in mind that Barnett was going about his business
of getting the work set up as quickly as possible and had no
advance knowledge or warning that his precise instructions
would ever be important in an unfair labor practice trial, I
find that he actually told Dickinson only that it was all right
to weld on both sides. This then meant that Dickinson was
not bound by the practice of only welding on one side which
gave rise to Dickinson's belief that he had been told he had
discretion when in fact he had not been so told. Dickinson
then exercised his discretion, albeit unwisely, but he appears
to have been obeying orders that he could weld on both
sides.
Although I find that Dickinson was not disobeying orders
and obviously that he was not deliberately disobeying or-
ders, it is possible that Morrow could have fairly believed
he was deliberately disobeying orders.
Evidence of Pretext
For the General Counsel to establish a "pretext" dis-
charge he must show by a preponderance of the evidence 1)
that the one discharged was active in the Union, 2) that the
employer knew of his activities, and 3) that the reason given
for the discharge does not stand up under careful analysis.
Evidence of union animus, if any, adds color and dimension
to the case.
Dickinson's Union Activities and
Employer Knowledge
Dickinson credibly testified that he set up the meetings
for employees and helped get cards signed. He arranged the
first meeting in April with Sewell, the union organizer, but
not enough employees attended. Sewell told him to tel-
ephone when he could get more employees interested in the
Union, Dickinson did telephone Sewell in September, and
a union meeting was set up for Tuesday, October 1. Dickin-
workers' union meeting Tue at 4:30 P.M. at the union
hall in town. (Exact copy of exhibit.)
He passed out "about a hundred" of these slips at the clock
as the employees were "clocking in to work and clocking
out." No effort was made to hide the fact that he was
passing out these slips and Morrow admitted seeing him do
it. Also related to the element of employer knowledge is an
alleged conversation between Personnel Mana er King and
Morrow but this is treated hereafter under 8(a)(1) allega-
tions. Morrow also admitted to knowledge of Dickinson's
union activities as early as April when he tried to set up the
first meeting. At that time Dickinson had been warned
"about soliciting and stopping other employees for the pur-
pose of conversation while on the job" but nothing was said
in the warning as to what Dickinson was soliciting for.
Dickinson then played a part in the next union meeting held
on October 19. He got the notices of this meeting from
Sewell on October 16 and again passed them out to employ-
ees on the 17th and 18th as they clocked in and out of work.
He attended the union meeting on the 19th and, like other
employees, signed a union card. He was selected chairman
at the meeting and as such received signed cards from em-
ployees and delivered them to Sewell. Some employees,
such as leadman Wallace, were against the Union. Wallace,
at some point in time between the union meeting on Octo-
ber 19 and Dickinson's discharge on October 23, told
Dickinson " . . . he was going to fight me (Dickinson) every
way he knowed how, to keep it out." When asked what was
meant by that statement, Dickinson replied, 'I don't know
unless it was the Union. That is the only thing we was
talking about."
I find that Dickinson was the employee most active in
union activities and that Respondent had knowledge of his
union activities at least from late September, when Dickin-
son, in front of the clock, first openly passed out the slips
of paper about the October 1 union meeting.
Analysis of Reasons Given for Discharge
Respondent's reason for discharge, as noted earlier, was
that Dickinson was fired for "deliberately failing to follow
instructions." I have already found from the discussion
above that he was not failing to follow instructions. It is time
now to consider the question of whether there was any
disparate treatment as to warning slips in Dickinson's case
and the question of why so much attention was given to
Dickinson's work on October 23 when the damages were so
small and repair work was normal.6
Dickinsonbegan work on October 23 at 7 a.m., and about
an hour later noticed he had been doing something wrong
and set about removing the faulty work from the "buggy
The job was then noticed by his leadman, and later by his
foreman. He had done about 48 items. If we say he had
worked just 60 minutes he was doing an item in 1-1/4 min-
utes or 75 seconds. In this time, he had to pick up an auto-
mobile tail pipe 4 or 5 feet long, thread a flange on it, put
the pipe into a jig, put on a bracket, weld it, and deposit the
pipe in the "buggy." He had to do this and maintain a
steady repetitive pace. I make no value judgments as to the
efficiency of this pace but as Dickinson was characterized
as a good welder I can assume the production was as ad-
equate as his welding skill. The record shows a not unrea-
sonable employer with leadmen and foremen showing
son alerted the employees about the meeting by passing out
small slips of paper on which he and his wile's sister's hus- 6 Damages can be computed at less than $10 If it took Dickinson 2 hours
band had handwritten: (which is more than testimony stated it to be) to repair the 1-hour fault at
If you aren't scared of your job come to a united auto $2 25 each hour there would be ample ($3 25) for parts and weld
FORMED TUBES SOUTHERN. INC. 19
employees how to do their job when necessary. But no one
showed Dickinson how to do this new job and this attests
to the respect and confidence his foreman and leadman had
in him. The record also showed through exhibits that hun-
dreds of leaking weld joints were returned for reworking in
August, September, October, and November?
The Company also had a system of verbally warning an
employee about his work, and thereafter if the same offense
continued to give a written warning that a further similar
offense would result in discharge. Dickinson received a
warning slip on June 5, 1968, for "Excessive abuse of the
tubes (hammering on ID spout)" and one on October 23,
1968, for "Incorrect assembling of tubes (did not put flange
correctly on before welding bracket)." Except for defining
the particular offense, these warning slips were identical and
they stated:
YOU HAVE RECEIVED MORE THAN ONE VER-
BAL REPRIMAND ON OFFENSE COMMITTED.
(The offense was spelled out here) THIS IS YOUR
FINAL WARNING, AND ANY REPETITION OF
THIS OFFENSE WILL RESULT IN DISCHARGE.
FOREMAN
EMPLOYEE
REFUSAL BY EMPLOYEE TO SIGN THIS NO-
TICE WILL RESULT IN AUTOMATIC DISMIS-
SAL.
Morrow admitted that he had warned Dickinson verbally
about hammering on the pipes before giving him the warn-
ing on June 5 and also admitted that no prior verbal warn-
ing had been given on the offense of putting the flanges on
backwards or on the offense, in the afternoon, of improper
welding in covering the holes so there was no leak. Accord-
ingly, he deviated from his practice and from the warning
slip itself when he gave the October 23 warning, and he gave
no warning whatsoever, verbal or written, about the faulty
welding in the afternoon of October 23 which lead to
Dickinson's discharge.
In conclusion then the reason given for discharge does
not stand up under scrutiny. Dickinson was not disobeying
orders, but was being singled out for warning and discharge
over an item considered insignificant (as it happened all the
time with no comment) and in a manner in breach of
Respondent's own rules as to warnings and discharges. As
Dickinson was the most active union adherent and Respon-
dent knew it, I infer that his union activities of passing out
the notices of union meetings triggered a more careful scru-
tiny of his work than was accorded others, leading toward
his being treated differently than others and being discrim-
inatorily discharged in order to discourage union activities.
I am convinced that but for Dickinson's union activities he
would not have been discharged. By doing this the Respon-
dent violated Section 8(a)(3) and (1) of the Act.8
i
No pcs Amount
August 300 $ 52 97
500 127 94
250 37 71
September 100 6 69
257 46 96
October 500 118 43
300 7044
250 114 88
November 1,000 109 07
250 66 87
Totals 3,707 $75196
Alleged 8(a)(1) Violations
General Counsel alleged independent 8(a)(1) violations,
in paragraph 7 of the complaint, committed by Personnel
Director King on September 30,9 and by Shipping Foreman
Knight on January 23, 1969.
Testimony to the King allegation was given by former
employee Raymond Taylor; it had to do with a purported
brief conversation he heard between Morrow and King rela-
ting to Dickinson's passing out union meeting slips on Sep-
tember 30. Based on express denials of Morrow and King,
the demeanor of the witnesses, and the fact that Taylor in
an earlier affidavit had identified the one talking to King as
Wallace rather than Morrow, the plant superintendent, I do
not credit Taylor. Accordingly I will recommend this allega-
tion of the complaint be dismissed.
Former employee William Gravitt testified for the Gener-
al Counsel as to the Knight incident of January 23, 1969.
Gravitt " ... was a union man-I mean he was strictly for
organizing the union," according to Knight.10 Gravitt testi-
fied that about 3 weeks before the election of February 12,
1969, he was walking down the aisle with Knight when
Knight said, "Well, I'll just tell you one thing. There will be
some people leave here after this is over." Gravitt believed
Knight to be talking about the Union, although there was
no mention of this, and said in reply, "I guess it will be me."
Knight then said, "No, it won't be you." On the other hand,
Knight expressly denied any such threat of discharge be-
cause of employees' union activities, and Knight is credited
s Evidence adduced by Respondent that Dickinson had told an employee
he was deliberately going to be discharged in order to get Respondent to pay
for his house and car is totally discredited Those so testifying are not cred-
ited against Dickinson' s and his wife 's denials First, there is no evidence that
Dickinson had the necessary sophistication and knowledge about backpay
and Board remedies to even speak about them, secondly it would be com-
pletely out of character for him to have so spoken , and thirdly those so
testifying exhibited such a hostile attitude toward Dickinson as to render
their testimony worthless The record reflects this to a large extent in the
evasiveness of many answers
Respondent also adduced evidence that there were rumors in the plant that
this was what Dickinson planned to do General Counsel produced credible
witnesses that there were no such rumors . But findings of fact will never be
based on rumors, Dr Clyde Morris, ("The Utility of Rumor," Department
of Communications , Michigan State University) a professor of communica-
tions at Michigan State University, who has studied the sociology of rumors,
states that for a rumor to flourish there has to be a predisposition to believe
it. His theory is that a rumor will not travel unless it is simple and is in a
population in which the rumor is highly significant His example is that a
rumor about hatchet-sex murders on campus traveled like wild fire in the
women's dorms where it had relevance but did not travel at all in the men's
dorms Tamotsu Shibutani, ("Improvised News-A Sociological Study of Ru-
mor," Bobbs Merrill 1966) a sociology professor at U C. Santa Barbara,
whose book on rumors is said to be considered the definitive work on the
subject, suggests that the tension of the period tends to make people more
suggestible And finally, Ralph Turner, ("Collective Behavior," Handbook of
Modem Sociology-Robert E L. Fams, Editor, Rand-McNally 1964) a
U C L.A sociologist whose speciality is crowd behavior and social move-
ments, believes that when people are angered or indignant they stop worrying
about the specific truth or falsity of what they are saying so long as it is on
the "right" side . Accordingly, if there were such rumors in the plant, a finding
which I do not make, it is understandable that antiunion believers would
prefer to believe it over union followers In any event, based on his position
in the Respondent and what I saw of him, I cannot believe that Morrow
would decide that Dickinson was deliberately trying to be fired because of
a rumor to that effect.
Respondent was permitted to file Exh 10 after the close of the hearing
reflecting other discharges A study of this exhibit adds nothing to
Respondent's position, as no one listed had worked for more than a few
months or the reason for discharge was dissimilar
9 This date is corrected from October 17, 1969, as it is in the complaint
10 Gravitt testified that his stand on the Union "was an open thing to
(Knight) " and he (Gravitt) used to carry keys on a UAW key chain
indicating he was for the UAW
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over Gravitt. Gravitt appeared to have a deep seated grudge
against Respondent and his testimony did not ring true. I
will recommend this allegation of the complaint be dis-
missed.
Paragraph 9 of the complaint again involves a conflict of
evidence between Gravitt and Knight, and I credit Knight
again over Gravitt and recommend this allegation in the
complaint be dismissed.
Paragraph 8 of the complaint alleges that Assistant
Plant Manager Toby Yarbrough, on or about October 17,
1968,11 solicited its employees to attend union meetings and
report what occurred.
Gravitt was the only witness as to this allegation. His
version is that Yarbrough joined him in his car in front of
the plant, told him he hoped he was not for the Union, but
if he would go to the union meeting and then report back
so the Union could be stopped, he (Yarbrough) " ... would
make it worth (Gravitt's) while, and ... would meet me
(Gravitt) any place I wanted to or he would come to my
house." The union meeting was on Saturday, October 19,
and, according to Gravitt, Yarbrough came to his house on
Sunday the 20th. Gravitt's testimony on direct examination
follows:
Q. What did Mr. Yarbrough say to you when he
came to your house?
A. He just asked me how did the meeting go and
what was our complaint.
Q. What did you say?
A. Well, it took me about two hours to tell him what
the complaint was, what mine was and he got up and
left.
On cross-examination, Gravitt admitted that he only talked
about his complaints and not about complaints of others.
Yarbrough testified that it is his practice to visit employ-
ees at their homes "all the time" and listen to their com-
plaints. As to the conversation of October 17 and its after-
math , he testified as follows:
Q. Now do you recall a conversation with Mr. Grav-
itt back sometime in October of 1968 out in front of the
plant around quitting time in which something about
the Union came up?
A. Yes, sir, I do.
Q. Will you tell me about that conversation?
A. Well, the campaign was going on throughout the
plant and the best f remember-I don't remember the
date that it was, but I believe I was leaving the plant
going home and I believe Junior, as we call him, Grav-
itt had been to the doctor, I believe he cut his finger,
his hand or something and he was sitting in his car out
on the parking lot or on the road by me when I went
out, and I went up to him and asked him how he was,
did he make it okay at the doctor and so forth, and he
said that he did. We were talking and I said this thing
was really going or something , discussing the on
and he said, "Yes, if you will come to my house I will
tell you the reasons why we need a Union down here."
I said, "Do you think you know?" He said, "Yes, I do."
I said, "Well, all right."
Q. He said that when you had the conversation with
him out in front of the plant in the parking lot you said,
"I hope you are against the Union, and if you will go
to the meeting I will make it worth your while."
A. No, sir, I did not say that.
Q. And that after such conversation you told him to
11 This is the date as developed at the trial
come to your house after the union meeting that was
being held?
A. No, sir, I did not say that.
Q. Did you actually go by his house?
A. I went by his house, yes, sir.
Q. When did you go by his house in relation to this
conversation in the parking lot?
A. I believe it was the night-it might have been the
next night or two after, but I believe it was that night.
Q. So you did visit his house?
A. Yes, sir.
Q. What time did you go there?
A. Oh 6:00 o'clock I would say, roughly.
Q. He said you went to his house the night after the
Union meeting; in other words, the Union meeting was
held on a Saturday and you went to his house on a
Sunday night. Did you go over after a Union meeting
or do you ow?
A. I don't remember; I am not sure about that.
Q. But you did go by his house?
A. Yes, 'I did.
Q. Tell me about what was discussed at his house.
A. I went into his house and we sat down and talked
a while because we were both born and reared in the
same community, and we talked about how much bet-
ter things were now than they were several years ago,
and kept talking around, the reasons for it and then lie
said. "I can tell you a lot of things." So he let in to tell
me. Most of them were his personal complaints of why
we needed a Union down there.
11
A. Junior (Gravitt) said he didn't care; he was still
going to be for it (the Union) and I said, "Junior, that
is your right. You have known me all of my life and I
have known you most of yours. We have grown up less
than half a mile from each other. We can discuss this
thing. You feel like you are for it and I will tell you why
I am against it. This is your privilege."
Q. He (Gravitt) said during the conversation you
asked him how the meeting went, how the Union meet-
ing went that they had had; did you ask him how the
Union meeting had gone?
A. No, I didn't ask him how the Union meeting had
gone . He said he invited me out there to tell me the
reasons why, and I asked him the reason why he want-
ed a Union.
Yarbrough testified on cross-examination of his lifelong
friendship with Gravitt and of Gravitt's personality in that
he " . . . was a funny boy. Out in the plant all the time
everytime you would go by him, he would say something to
you and it didn't make any difference what and he was all
the time kidding me from the time he started to work down
there. I would assume he was kidding me about going to get
a union down there and he would kid me about my wife and
his wife. We were very good friends and still are. I mean I
don't have a thing in the world against him. As I say we were
born and reared together."
I credit Yarbrough and find that the General Counsel has
not carried his burden of proving that Respondent "solic-
ited its employees to attend union meetings and report what
occurred at such meetings" and accordingly I will recom-
mend that paragraph 8 of the complaint be dismissed. I find
FORMED TUBES SOUTHERN, INC
insufficient evidence, under these credited circumstances, to
establish a finding of fact that Respondent interfered with,
restrained, and coerced its employees within the meaning of
Section 8(a)(1) of the Act.
III THE EFFECT OF THE UNFAIR LABOR
PRACTICES ON COMMERCE
The activities of Respondent set forth in section II, above,
occurring in connection with Respondent's operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
IV THE REMEDY
Having found that Respondent has engaged in unfair
labor practices I shall recommend that it cease and desist
therefrom and take certain affirmative action to effectuate
the policies of the Act.
I{avm found that Respondent discriminatorily dis-
char ed John C. Dickinson in violation of Section 8(a)(3)
and (1) of the Act, I will recommend that Respondent offer
him immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his sen-
or other rights and privileges, and make him whole forioritTo
any ss of earnings or other benefits he may have suffered
as a result of the illegal discrimination against him, said loss
to be computed in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, and with interest
thereon as prescribed- in Isis Plumbing & Heating Co., 138
NLRB 716.
21
In view of the nature of the unfair labor practice found
herein to have been committed by Respondent, which indi-
cates its determination to interfere with its employees ' rights
of self-organization, I shall recommend that the Respon-
dent cease and desist, in any manner, from infringing on
rights guaranteed its employees by Section 7 of the Act.12
On the foregoing findings of fact and the entire record in
this case, I reach the following:
CONCLUSIONS OF LAW
1. Formed Tubes Southern, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By dischargmg John C. Dickinson because he en-
gaged in union activities, Respondent has discouraged un-
ion activities in violation of Section 8(a)(3) of the Act, and
has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed in the Act in violation of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The allegations of paragraphs 7, 8, and 9 of the com-
plaint have not been established by the preponderance of
evidence.
[Recommended Order omitted from publication.]
12 N L R B. v Entwistle Mfg Co, 120 F.2d 532 (C.A 4).