Local 212, UAW

National Labor Relations Board - Board Decisions

Aug 25, 1960

128 N.L.R.B. 952 (N.L.R.B. 1960)

952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 212, International Union , United Automobile, Aircraft and
Agricultural Implement Workers of America, UAW-AFL-CIO,
[Chrysler Corporation ] and Rholo Taylor. Case No. 7-CB-
462. August 25, 1960
DECISION AND ORDER
On March 4, 1960, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report with a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Re-
port, the exceptions, the brief, and the entire record in this case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following modifications :
1. We find, as did the Trial Examiner, that by the conduct more
fully described in the Intermediate Report the Respondent coerced
and restrained within the meaning of Section 8(b) (1) (A) employees
of the Chrysler Corporation at its Vernon plant in the exercise of the
rights guaranteed by Section 7 of the Act. In so finding we rely solely
on the following incidents :
(a) Early in March 1958, Respondent's Committeeman Waszkiewicz
told General Foreman Token that Taylor, a leading organizer for the
Society of Skilled Trades, a rival organization, went around the shop
distributing the Society's literature and "agitating" for that union,
and that he should be discharged because he would cause a lot of
trouble and dissension. The record does not show who, if any of the
employees, were present during this conversation. However, General
Foreman Token in the course of his investigation of the incident com-
municated Waszkiewicz' demand to Taylor. Although Taylor was not
discharged by Chrysler as a result of this incident because he was
found to have engaged in such activities on his own time, we find that
Taylor was restrained and coreced thereby in the exercise of the rights
guaranteed by Section 7 of the Act.
'The Respondent's request for oral argument is hereby denied as the record, the
exceptions, and brief adequately present the issues and position of the parties.
128 NLRB No. 112.
LOCAL 212, UAW ' .1 r 953
(b) Later in March 1958, Respondent's Steward Holstein stated to
Taylor, while the latter was distributing to employees Society's litera-
ture, "You don't want to stick around here long, do you. . . . We are
going to throw you out of here if you don't stop passing out that
Society's literature."
(c) On March 25, 1958, Committeeman Waszkiewicz and Chief
Steward Tencza provoked a fight with Taylor over their demand for
the return of a Society's authorization card, which Taylor had ob-
tained from employee Hord some time before. The fight, as the Trial
Examiner found, was deliberately provoked for the purpose of forcing
Taylor to violate the Company's rule and fixed policy that the one who
strikes the first blow is subject to discharge and thereafter used as a
pretext for Taylor's discharge. As the real reason for this demand
was the Respondent's desire to secure discrimination against Taylor
and thus to get rid of an organizer for a rival union rather than their
concern for compliance with the Company's rules, we find that by
the demand of its agents for Taylor's discharge the Respondent co-
erced and restrained adherents of the Society in the exercise of the
rights guaranteed by Section 7 of the Act .2
2. As Taylor lost his employment with Chrysler Corporation as a
result of the Respondent's conduct found to have been violative of
Section 8(b) (1) (A) of the Act, we find also that it will effectuate
the policies of the Act to direct the Respondent to make Taylor whole
for the loss of earnings he may have suffered in the manner set forth
in the Intermediate Report.'
9 Local 294 , International Brotherhood of Teamsters , etc (Valetta Trucking Company),
116 NLRB 842, where the Board held that the union 's attempt to cause a discriminatory
discharge, even though unsucessful and unaccompanied by threats of physical violence,
was violative of Section 8(b) (1) (A) of the Act; International Union, United Automobile,
etc, Workers of America, Local 295, et al. (Wisconsin Axle Division, etc.) 92 NLRB 968,
where the Board held that union conduct designed to secure discrimination against spe-
cific individuals is within the limitations which the Board in the National Maritime Union
case, 78 NLRB 971, placed upon the construction of Section 8(b) (1) (A).
9 As our remedy for a violation of Section 8 (b) (2) in the instant case , if found to have
been committed by the above- described conduct, would be the same , it is not necessary
for us to decide whether the Respondent by provoking the fight for the purpose of using
it as a pretext for Taylor' s discharge has also violated Section 8 (b) (2) of the Act.
Pacific Coast Marine Firemen, etc. (Pacific Maritime Association ) 107 NLRB 593;
NLRB v. George W. Reed , 206 F. 2d 184 (C.A. 9).
Member Jenkins would find that the General Counsel's failure to allege in the complaint
that by the conduct described therein the Respondent had also violated Section 8 ( b) (2) of
the Act does not preclude the Board from passing , as did the Trial Examiner, on the
issue He would follow the rule set forth in A:niericaii. Newspaper Publishers Association
v NLRB , 193 F 2d 782, 799 (C.A. 7) that
Where, as here, the complaint clearly describes an action which is alleged to consti-
tute an unfair labor practice, but fails to allege which subsection of the Act has been
violated or alleges the wrong subsection , such failure or mistake, if it does not
mislead the parties charged , does not prevent the Board from considering and
deciding the charge so presented -
Member Jenkins would then find that by provoking a fight with Taylor with full
knowledge of the company rule and fixed policy that the one who strikes the first blow
is subject to discharge and by using it as a pretext for a demand for discharge; the
Respondent "attempted to cause" Chrysler to discharge Taylor within the meaning of
Section 8 (b) (2) of the Act
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record and pursuant to Section 10 (c) of the National
Labor Relations Act, the National Labor Relations Board hereby
orders that Respondent Local 212, International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
UAW-AFL-CIO, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Restraining or coercing employees of Chrysler Corporation,
Detroit, Michigan, by threatening them with loss of employment or
physical violence if they engaged in activities in behalf of Interna-
tional Society of Skilled Trades, or International Association of Tool
Craftsmen, or their affiliates.
(b) Harassing adherents of the said labor organizations by inter-
fering with their work and by provoking them into physical violence
and violation of Company rules for the purpose of causing their dis-
charge by the Company.
(c) Causing or attempting to cause Chrysler Corporation, Detroit,
Michigan, to discriminate against adherents of the said labor organiza-
tions in violation of Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(d) In any other manner restraining or coercing adherents of the
said labor organizations employed by Chrysler Corporation, Detroit,
Michigan, in the exercise of the rights guaranteed by Section 7 of the
Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized by Section 8 (a) (3) of the Act as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Chrysler Corporation and the Charging Party, Rholo
Taylor, in writing that it has no objection to the Company's employ-
ment of Rholo Taylor.
(b) Make whole Rholo Taylor for any loss of pay he may have
suffered as a result of discrimination, against him, in the manner set
forth in section V of the Intermediate Report, entitled "The Remedy."
- (c) Post in conspicuous places at its business office in Detroit,
Michigan, and in all places where notices or communications to its
members are customarily posted, copies of the notice attached hereto
marked "Appendix." 4 Copies of such notice, to be furnished by the
Regional Director for the Seventh Region, shall, after being duly
signed by the Respondent's representative, be posted by the Respond-
4In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words, "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
LOCAL 212, UAW 955
ent immediately upon the receipt thereof, and maintained by it for
a period of 60 consecutive days thereafter. Reasonable steps shall be
taken by the Respondent to insure that such notice is not altered,
defaced, or covered by any other material.
(d) Mail to the Regional Director for the Seventh Region signed
copies of the notice attached hereto marked "Appendix" for posting,
Chrysler Corporation willing, on the bulletin boards of said Company
at its Vernon South Plant in Detroit, Michigan, where notices to em-
ployees are customarily posted. Such notices are to be posted and
maintained for a period of 60 consecutive days after receipt by the
Company.
(e) Notify the Regional Director for the Seventh Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
APPENDIX
NOTICE TO MEMBERS OF UAW-AFL-CIO AND ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in-order to effectuate the policies of the National Labor
Relations Act, as amended, you are notified that :
WE WILL NOT restrain or coerce employees of Chrysler Cor-
poration, Detroit, Michigan, by threatening them with loss of
employment or physical violence if they engage in activities
in behalf of International Society of Skilled Trades, or Inter-
national Association of Tool Craftsmen, or their affiliates.
WE WILL NOT harass adherents of the said labor organizations
by interfering with their work and by provoking them into
physical violence and violation of the Company rules for the
purpose of causing their discharge by the Company.
WE WILL NOT in any other manner restrain or coerce adherents
of the said labor organizations employed by Chrysler Corpo-
ration, Detroit, Michigan, in the exercise of the rights guaran-
teed by Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized
by Section 8(a) (3) of the Act as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE,WILL make Rholo Taylor whole for any loss of pay he may
have suffered by reason of our discrimination against him.
WE WILL notify Chrysler Corporation and the Charging Party
in writing that we have no objection to the Company's employ-
ment of Rholo Taylor.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees of Chrysler Corporation are free' to become or re-
frain from becoming members of International Society of Skilled
Trades, or International Association of Tool Craftsmen, or their
affiliates.
LocAL 212, INTERNATIONAL UNION, UNITED
ATITOMOBILE , AIRCRAFT AND AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA,
UAW-AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding began with the filing of a charge on April 7, 1958, by Rholo
Taylor, herein called Taylor, and with all parties represented, was heard before
the duly designated Trial Examiner in Detroit, Michigan, on April 28, 29, and 30,
1959, on complaint of the General Counsel and answer of Local 212, International
Union, United Automobile, Aircraft and Agricultural Implement Workers of
America, UAW-AFL-CIO, herein called the Respondent.
The original complaint issued on November 28, 1958. Respondent's several
motions, to extend time to file answer and to make the complaint more definite,
together with the necessary rulings thereon extended the time for the hearing to
April 28, 1959. Prior to the hearing, the General Counsel by letter dated February
13, 1959, served notice to Respondent that he would move to amend the complaint
at the hearing. Accordingly such motion was made and granted and a general
denial thereto was entered by the Respondent.
The major issue in the case is whether Respondent violated Section 8(b)(1) (A)
of the National Labor Relations Act, as amended, herein called the Act, by harass-
ing and addressing vile and obscene language to Taylor designed to provoke
Taylor into resorting to physical violence which would cause his employer, Chrysler
Corporation, herein called Chrysler, to discharge him for fighting on company
time and property. This then comes down to two questions of fact: (1) Whether
Respondent did engage in this alleged conduct; and (2) Whether such conduct did
have the predictable result and did cause Taylor to engage in a fight which in turn
did cause his discharge.
Additional issues involve questions of whether "stewards" and "committeemen"
are agents of a labor organization so as to cause it to be responsible for their
actions, and whether or not certain other actions taken against other employees
violated the same section of the Act.
The type of the remedy becomes an issue should a violation be found, as the
remedy requested is like the usual remedy for a violation of Section 8(b)(2).
However, although alleged in the charge, the complaint does not specify an 8(b) (2)
violation.
Preliminary Motions and Contentions
1. Respondent contended that the Charging Party was "fronting" for labor or-
ganizations not in compliance with Section 9(f), (g), and (h) of the Act. The
Trial Examiner ruled at the hearing that a Charging Party alleging a violation of
his rights under Section 7 could not be found, under the decisions of the National
Labor Relations Board, herein called the Board, to be "fronting " He has reviewed
this ruling and is of the same opinion. It is perfectly proper and reasonable for
an individual to seek aid and assistance from his friends wherever situated and he
accordingly cannot lose any of his rights under Section 7 of the Act if he so acts.
2. Respondent contended that the organizations for which the Charging Party
was soliciting were not labor organizations within the meaning of the Act. As Re-
spondent Counsel himself referred to them as "labor organizations" and as the
General Counsel requested the Trial Examiner to take judicial notice of certain
LOCAL 212, UAW 957
Board cases, e.g., Motor Wheel Corporation, 7-RC-3854, 3858 (unpublished) and
Gibson Refrigerator Company, 117 NLRB 561, 564, this contention is hereby found to
lack merit.' The complaint was amended at the hearing to specifically identify
the International Association of Tool Craftsmen in paragraph IV(a) as an affiliate
of International Society of Skilled Trades, herein respectively called IATC and ISST.
3. Respondent moved at the hearing to be supplied by General Counsel with a
pretrial statement signed by Rholo Taylor, for which he was responsible, and which
directly related to his testimony in the proceeding. The statement requested was
not made before a Board agent but was made before Chrysler who had given
the General Counsel a photostat. The Trial Examiner granted the motion and
Respondent was supplied with the statement under the authority of Ra-Rich Manu-
facturing Corporation, 121 NLRB 700; title 18, USCA, Sec. 3500; and U.S. v.
Palermo, 258 F. 2d 397 (C.A. 2).
4. Motion was made at the trial to strike Mitchell Osmialowski from the plead-
ings. General Counsel concurred and motion was granted.
5. Respondent's motion to dismiss, made at the close of the hearing, is dis-
posed of in accordance with this decision.2
The parties filed briefs.
Upon the entire record, including the briefs, and my observations of the wit-
nesses as to their demeanor I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Employer Chrysler, a Delaware corporation, is engaged at its principal office and
place of business at Detroit, Michigan, in the business of manufacturing auto-
mobiles and automotive equipment. In the course and conduct of its business
operations it annually causes to be purchased and transported directly to its place
of business in Detroit, Michigan, supplies and materials valued in excess of
$1,000,000 in interstate commerce from States of the United States other than the
State of Michigan, and annually sells and ships finished products valued in excess
of $1,000,000 from its plants in Detroit, Michigan, in interstate commerce to
points outside the State of Michigan. The employer has been at all times herein
mentioned and is now engaged within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the meaning of Section 2(5) of
the Act and at all times material hereto was the collective-bargaining representative
of the production and maintenance employees of the Stamping Division of Chrysler,
and at all times material hereto maintained and does now maintain business offices
at 12101 Mack Avenue in the city of Detroit, Michigan.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The events
Taylor was hired by Chrysler as a planer hand on June 28, 1957, and worked
as such until Chrysler discharged him 9 months later on March 28, 1958.3 He
1 The Trial Examiner always takes judicial notice of Board decisions with or without
request by the parties
'The pertinent provisions of the National Labor Relations Act (61 Stat. 136, as
amended, 29 U.S C 151, et seq ), are as follows :
SEc. 7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condition
of employment as authorized in section 8(a)(3).
* s s s s e s
SEc. 8(b). It shall be an unfair labor practice for a labor organization or Its
agents-
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed
in section 7: . . . .
s Case No. 7-CA-1896 alleging violations of Section 8(a) (1), (2), and (3) was' filed
against Chrysler but was dismissed by the Regional Director on grounds of insufficient
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked on the first floor in department 57 on the afternoon shift from 3:30 p.m.
until 12 midnight. His lunch period was from 8 to 8:30 p.m. There were 300
employees in this department but only 30 in the particular portion where he worked.
Andrew Tencza, sometimes called "Andy," was Respondent's chief steward having
jurisdiction over these 30 employees. Clarence Grose, called "Gross," was Taylor's
foreman and Gerhard Token, sometimes referred to as "Whitey" or "Token" was
the general foreman over department 57.
1. The fight
Token discharged Taylor at about 3:35 p.m. on March 28, 1958, on the advice
of the Labor Relations Counsel of Chrysler. The discharge was for violation of the
company rule against fighting on company time and property. This rule was well
known by all parties and had consistently been followed.
The fight took place on March 25, 1958, shortly after Taylor had resumed work
following his lunch period which ended at 8:30 p.m. Respondent Committeeman
Stanley Waszkiewicz sometimes called "Stanley" or "Waszkiewicz" had volunteered
to come down from the fourth floor with employee Herman Hord, called "Hord,"
for the purpose of getting back an authorization card which Hord had signed some
days earlier. They picked up Respondent's Chief Steward Tencza on the first floor
and approached the planer operated by Taylor. (Hord did not know Taylor's
name and could not recall anyone ever mentioning it). As they came around the
end of this large planer, and confronted Taylor, according to the credited testimony
of employee Hubbard corroborated by Hord, Stanley was slightly in front of Andy
who was on his left hand and Hord who was on his right hand 4
Stanley asked Taylor if he had solicited Hord. Taylor replied that he had done
so. Stanley then said "you give him back his authorization card." 5 Taylor told
him he had no authority there and no business there as this was not his Union's
[Respondent's] business and asked them to leave. Stanley told Taylor the Respond-
ent did not represent him but did represent Hord and they were not leaving; that
they were going to get the authorization card. Andy at that time called Taylor a
"blank." 6 Andy then said to Taylor "after all we have done for you, you pull this
[see Tr. 51 line 21] on us, . . . you are going to stop it now." 7 Taylor told
Stanley that the man had never asked for his card whereupon Stanley said, "Well,
he's asking for it now" and Taylor replied, "No, he's not asking for it. You are."
Stanley turned to Hord and told him to ask for his card whereupon Hord asked for
it and Taylor said "you fellows go out of here and you [Hord] come back, and
I'll give you your card. If you don't want me to have it I don't want to keep it, but
I am not going to pull out my cards in front of these fellows here to look over my
shoulder and see who have signed cards or who didn't, or how many I have got,
or how many I haven't got." Stanley replied "We're not going out of here until we
get it" and he raised his cane or walking stick which he was carrying up in the air
and said "you had better start getting it." At that time Taylor turned to walk away
but finding the road blocked by people who had gathered around picked up a piece
evidence of violations, which dismissal was affirmed by the General Counsel on appeal to
him, on December 15, 1958
4 Taylor testified that he had been told earlier during the work shift that Respondent
committeemen were going to come after him after lunch and tear his shirt off. (This was
an ordinary white short-sleeve shirt with the emblem of the Society of Skilled Trades
stamped on the back in black ink. The emblem was a circular design having a 12-inch
diameter (General Counsel's Exhibit No. 4). Hubbard, a sweeper in the vicinity of
Taylor's planer, spotted the three men first and told Taylor that the committee was
after him Taylor told Hubbard to leave as they were coming in to tear his shirt off
and he did not want Hubbard to get into trouble, but it was too late.
i Chief Steward Andy Tencza disagreed with a few parts of testimony given by Taylor,
Hurd, and Hubbard. For example he said he, rather than Stanley, spoke first and that
Taylor swore at him before he swore at Taylor. Both Hurd and Hubbard were members
in good standing in Respondent and impressed me as being disinterested witnesses and I
credit them over the chief steward. The General Counsel's brief states that Heard's name
was incorrectly spelled in the transcript as Hurd. As the witness spelled his name
Hurd at the trial I will use this spelling
6 The term "blank" is being substituted for the obscene, objectionable and unprintable
word called Taylor. For those having an interest in the exact wording it may be found
in the transcript at page 51 line 20.
4 Andy, on cross-examination, admitted saying, "We treated you pretty good up here,
why don't you go wherever you had the trouble and organize them and leave us alone."
LOCAL 212, UAW 959
of wood measuring 2- by 2- by 16-inch and returned to his position . Andy stepped
off the platform and blocked Taylor's way and Stanley asked Taylor what he was
going to do with the club, Taylor said "the same thing you're going to do with that
cane . . . I am going to comb your hair with it if you make an attempt at me with
that cane. I am not about to get hit with that cane." Andy then said to Taylor
"you `blank' why don't you go back where you came from. We don't want you here
anyhow." Taylor laid down the 2- by 2- by 16-inch on the bench and turned to
Andy and said "you are a `blank' yourself." Whereupon Andy called Taylor a
"son-of-a-bitch" and Taylor hit him once in the face and once in the chest and with
his left arm put a headlock on Andy and pulled him over toward the bench.
Stanley put his cane across Taylor's throat and with a hand at either end of the
cane jerked back on it using his knee in Taylor's back as leverage. At that time
employee Hurd, who worked on the machine alongside of Taylor yelled, "Cut it
out, Stan. No two men on one."
Stanley told Hurd "You get out of here, we will take care of him." As Stanley
was pulling back on the cane Taylor picked up the 2- by 2-inch and hit Andy on
the head with it. Taylor turned to hit Stanley with the 2- by 2-inch but Hurd took
it from him saying, "Don't do it, Taylor." Stanley grabbed Taylor by the arm
and said, "Come on Andy, I've got him." Hurd told Andy to stay out of it and
Stanley turned Taylor loose saying, "Andy, come on, we will take care of this right
away." Whereupon Stanley and Andy went to get General Foreman Superintendent
Token.
Within a few minutes Token, who had been on another floor when called about
the disturbance, came down the elevator and was met by Andy and Stanley who told
him that Andy had been hit by Taylor. Token brought them to Taylor's location
and asked him to give his story but everytime Taylor would try to say something
Stanley would yell, "You're a God damn liar," and Taylor could not tell his side of
the story. Token told the men who had gathered around the machine to get back
to work and Stanley told Token, "I am requesting this man's payoff." And Token
said, "You mean you are telling me to fire the man?" And Stanley replied "Yes."
Token refused to fire Taylor and they all went back to work.
The following day, March 26, Taylor was interviewed by Chrysler and signed a
statement substantially as related above. On March 28, 2 days later, Taylor was
advised to come to the employee's labor relations office where Token told him he
was discharged.
Taylor went to Respondent's vice president on March 3.1 and filed a grievance
which on April 4 was taken up at a meeting with the Company's labor relations man
and the representatives of Respondent and Taylor. Taylor was told by Chrysler's
labor relations man that the Company could not do anything for him because he
was low on seniority. The Respondent's vice president did nothing at the meeting.
Taylor did all the talking. When the meeting was over, Respondent's Vice President
Czerwinski told Taylor he had no case for further action. The collective-bargaining
agreement provides for six steps in the grievance procedure culminating in taking the
case to an umpire. This case never got beyond the fourth step.
Token, corroborated the testimony of Taylor, above. In addition, he testified
that Stanley had approached him about a month before March 25 after the lunch
period telling him that Taylor should be dismissed as he would cause a lot of
trouble and dissension . Token asked how that would be and Stanley said, "Well,
he goes around the shop and distributes literature and agitates for this union."
Token followed up this report by asking Taylor about his activities and Taylor told
him that he distributed the literature only during his lunch time. Token told Taylor
not to leave his machine during working time and that same day reported back to
Stanley what he and Taylor had talked about. Nothing further happened until
March 25. Neither Token nor any of the foremen saw Taylor distributing anything
on company time nor were there any complaints from any foreman about the
distribution littering the premises. Immediately after the incident on March 25
Token went to his front office and called the labor relations man on the telephone
and then prepared the written report of the story as much as he knew it at the
time.
Token credibly testified that he knew of no incidents when Stanley asked him to
enforce a company rule against any employee of the Company prior to the time
when he asked for the discharge of Taylor. But after the Taylor incident Stanley
asked Token to enforce a company rule some 4 or 5 weeks prior to the hearing
in this case . This had to do with a disorderly lineup at checking time at the clock.
No time prior to the.Taylor episode had Stanley ever requested the discharge of
an employee.
Foreman Grose, Taylor's immediate supervisor, credibly testified , that around the
1st of March , Stanley talked-with him with respect to Taylor's activities on behalf
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the SOS (Society of Skilled Trades). Stanley wanted Grose to stop Taylor's
distributing handbills and pamphlets on the company property and wanted him to
send Taylor back to his own department even though he had said that Taylor
was distributing handbills during his lunch hour. Grose told Stanley that he
thought it was permissible during lunch period to pass out literature and that if he
sent Taylor back he would have to send everybody back to their machines. Grose
substantially corroborated Token and Taylor to the extent of his participation in
the events related.8
Employee Hurd operated the machine adjoining that of Taylor. The disturbance
on March 25 was called to his attention by the loud talking. Among the first words
that Hurd could distinctly hear was Taylor's asking Andy and Stanley to go on out
and leave him alone that he did not want to have any trouble with them. He then
heard Stanley say that he was not going and he heard Andy swear at Taylor. In
this respect he corroborated Taylor completely. During the fight, Hurd pulled one
of Stanley's hands from the stick which Stanley was pressing against Taylor's
throat and told them, "You all had better get on out of here or you all are going
to be in trouble"; Stanley replied, "You get on out of here. We will tend to him
[Taylor]." Hurd said , "No, you are not both going to jump on him." And by this
time Hurd was between Stanley and the others and Stanley said, "Somebody go get
Whitey."
Hurd gave a statement to the labor relations man of Chrysler the following day
before he had ever had any conversation with Taylor with respect to the fight. His
testimony at the hearing appeared to be consistent with that given in the earlier
statement.
Employee Hubbard, who was the sweeper in the area of Taylor's machine, was
at Taylor's machine when Stanley and Andy and Hord arrived on March 25 and
he corroborated in full the testimony of Taylor and Hurd. As stated earlier in a
footnote, I credit Hurd and Hubbard when their testimony varies with that of
Chief Steward Andy Tencza.
2. Taylor's activities for the SOS
Taylor passed out handbills and authorization cards for the SOS during the lunch
period. He so testified, and although some of Respondent's witnesses testified that
he passed out literature on company time it is interesting to note that no foreman
saw him (even though Committeeman Waszkiewicz reported it to Token and to
Grose); the operator at the next machine did not see him; the sweeper never saw
him; the man who signed the card that triggered the March 25 episode testified that
he received his card at lunch; Big Mike Osmialowski, Respondent's steward, saw
him at lunch time; and Steward Paul Thorne, who first called Committeeman
Waszkiewicz's attention to the distribution and who went down to the first floor
with him (March 10, according to Taylor) and Committeeman George Nicholson to
point out Taylor to him and Chief Steward Andy Tencza, testified that Taylor offered
him an application at lunch and he could not remember ever having seen him other
than at lunch time. Tencza's best recollection of activity other than at lunch
was vaguely that he saw him at 11:45 (15 minutes before quitting time) one time
somewhere between March 3 and March 25. This testimony thunders against that
of Waszkiewicz and Chester Kayne. The latter testified that Taylor passed out
literature, "On numerous times. I mean he was over there practically anytime of
the day passing them out." He said 10 to 15 times were the occasions, but I of the
2 specific times he could finally identify was the day following the fight and this
time was 5 minutes before Taylor's shift started work .9 Waszkiewicz himself com-
8 The General Counsel, in attempting to prove the fact that many employees knew In
advance of the Taylor episode that the committeemen were going to "take the shirt off"
Taylor's back, established through the testimony of Taylor, Token, and Grose the fact
that there were employees in the aisle around the Taylor machine. Grose for example
recalled seeing these employees and did not believe they were under his supervision and
he saw five or six that were not operating machines. Grose was the first to encounter
Stanley and Andy as they were on their way from the Taylor incident and was told by
Stanley that Taylor had hit Andy and they wanted Taylor fired Grose told them it was
out of his jurisdiction and that he would have to get Token and that Is when he went
back to his office and called Token down from the floor where he was located . Taylor
identified some of the men who were blocking the aisle before the fight and one was
Chester Kayne who worked elsewhere in the plant under another foreman.
8 Kayne further testified that 2 or 3 days before March 25, he saw Taylor passing
out literature during working hours but could not answer when asked as to the time of
day it was when be actually saw it. I cannot credit Kayne unless his testimony is
LOCAL 212, UAW 961
plained to Foreman Grose that Taylor was distributing handbills during his lunch
period. Accordingly I find that Taylor passed out literature and solicited authoriza-
tion cards only on his own time.
3. Background events
(a) The events that took place on March 25 and thereafter need certain back-
ground information to bring them into sharp focus. Summarizing the testimony
of the witnesses, the credited story is that immediately after Taylor had been hired
in June 1957, Respondent's steward on the day shift, Art Kaus, asked Taylor for
a journeyman's card. Taylor had no journeyman's card but said that he had letters
proving more than 10 years of experience. Kaus told Taylor that he was a number
in the shop and not to expect any favors and that Taylor was not going to work
there. Taylor had never met Kaus before. Also at about 10 minutes after Taylor
had commenced work on June 28, 1957, Chief Steward Andy Tencza came to talk
to him. Andy told him that he did not know what was wrong around there, but
he said, "we have had men around here 6 weeks, and we haven't asked for a transfer
card or a journeyman's card or anything but apparently they are right after you
and they are not going to let you get away with it, and I want to know if you have got
a journeyman's card." Taylor had never seen Andy before and on the next working
day Taylor brought in and gave his letters attesting to his 10 years of experience.io
Shortly after Taylor had been hired, Kaus complained that Taylor's jobs were
improperly set up. General Foreman Token had Foreman Grose check the job
before Taylor commenced work and when he quit at the end of the shift, and there
was no more trouble after this machine had started being checked. Approximately
in November 1957, the day shift Foreman Brown called the day shift Superintendent
Middleburn and Token together at Taylor's machine. The machine in the words
of Token ". . . was in a mess. There were planer chips, paper, vegetable matter,
everything was strewn around, on and around the machine."
On redirect examination of Token with respect to the Kaus incident he testified
credibly that he asked Foreman Grose whether he made an independent check on
the Kaus complaint and Grose told him that he had made such an independent
check and that he found that all the jobs were improperly set up, but that Kaus was
the one who had improperly set them up. And that Taylor was not at fault at all.
Taylor distributed literature on the fourth floor himself on the ground that the
employees there were mostly leaders and committeemen and that they were "difficult"
to organize and to talk to and that he didn't want to give this difficult job to one
of the other organizers, so he decided to do it himself.
Taylor testified without contradiction that the same day or a day or so after
Thorne had pointed him out to Tencza, Waszkiewicz, and Nicholson (March 10,
1958) he was distributing handbills in the north wing of the die room in department
57 where Holstein was Respondent's steward. Holstein came over and said, "You
don't want to stick around here long, do you?" As Taylor was leaving the premises
Holstein said, "We're going to throw you out of here if you don't stop passing
that Society literature out."
Taylor also testified without contradiction that on March 13, 1958. Steward
Tencza came over to his machine and told him he was not "in on" the things that
were going on but that when committeemen tell him to do things he has to do as they
say. He told Taylor he knew Waszkiewicz was watching to catch Taylor off the job
because when he caught him off the job he was going to be fired. This fits in with
Token's testimony that about a month before March 25 Waszkiewicz approached
Token after lunch and asked Token to discharge Taylor because he would cause a
lot of trouble and dissension by distributing literature and agitating for the Society.
Taylor also testified without contradiction that on March 24, the day before
the fight, Chief Steward Tencza approached him and offered to transfer him to a
uncontradicted . Finally, as Waszkiewicz admitted that he and Bayne went to see Token
on March 26 about Trial Examiner's Exhibit No. 1, it could have had nothing to do
with the earlier request for the discharge or with the fight that caused the discharge.
10 George Nicholson, chairman of the Skilled Shop Committee, came to Taylor's machine
with Andy shortly after Taylor had been hired and Nicholson asked for Taylor's with-
drawal card Taylor replied he had none, whereupon Nicholson said, "You have been
here 2 weeks and you have to deposit it immediately or you can't work here." Taylor
and he then looked at the constitution of Respondent and Nicholson said they did not go
by the constitution, they made their own laws. The following month Taylor presented his
withdrawal card to Respondent and became a member of Respondent but never obtained
a UAW journeyman card.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine in the corner saying the operator there had approved it. Taylor refused.
He had not asked for a transfer nor did he wish to leave his machine which was
out in the open.
(b) Committeeman George Nicholson's testimony corroborates Taylor and other
credited witnesses . Nicholson remembered the incident of Kaus and whether or
not Taylor was a journeyman. He remembered questioning Andy Tencza and
Andy had told him that as far as Taylor's papers were concerned that they satisfied
him. Nevertheless, he then asked Taylor to see his papers and Andy, who had them,
showed them to him. He testified that then he was satisfied that Taylor was a
journeyman. Nicholson's testimony with respect to the warning as testified to by
Taylor is as follows: ". . . now, on this here, well, you might say Society, I might
have warned the man to be careful to how he does it, or don't let Management see
him doing it if he continues to do it, and I would appreciate it very much if he
didn't do it, or something like that; of course it could be possible that I would correct
anybody in the department if I saw them passing out literature of some other union
other than the UAW. Especially that was a rule, that no literature could be passed
out through the plant, and I cautioned him to be careful. If I couldn't talk him out
of doing it at all." He was then asked, "Did you talk to Mr. Taylor along those
lines" And answered, "it could have been possible. Q. You don't remember such a
conversation?-A. I don't remember, but it could be possible that I would do that."
From the vagueness of this testimony it would appear that Taylor's story of the
event should be credited.
Nicholson further testified that on March 28 he remained after his shift had
ended its work in order to meet Taylor in the aisle on his way to the company office.
Taylor was on his way to be discharged but he did not know this at the time.
However, Nicholson did know that Taylor was going to be fired and he was waiting
in the aisle as he said to "volunteer" his services in aiding Taylor before the Company.
Nicholson's testimony appears evasive and he kept repeating that the only thing
that he knew that was important was that he wanted to represent Taylor and that
he had to beg him to represent him.
(c) Taylor made certain admissions . He admitted distributing handbills at the
rate of almost one each day commencing in February-the last week in February.
He specifically identified 13 handbills handed him by Respondent but denied dis-
tributing the ones identified as Respondent's Exhibit No 2 and Trial Examiner's
Exhibit No. 1. I credit his testimony. Taylor testified that these handbills were
distributed on his own time except that it would have been possible for him to
distribute material at his machine on company time to anyone who came by but
he could not remember having done that nor did any other witness testify that he
had done so. He admitted to a few conferences with employee LeVasseur at his
machine. There were three or four of those conferences
Taylor testified that on March 25 when he attempted to walk around his machine
and get away from Stanley, Andy, and Hord he saw Bates , Chester Kayne, a man
referred to as Pollack, and another man identified with a small mustache whom
he believed to be an alternate committeeman He said these men were standine in
various aisles a little more than 20 feet away from his machine standine there looking
at him and it was then that he turned around and picked up the 2- by 2-inch. Taylor
testified that because of his being blocked by these four men he could not go to
talk to the superintendent. He had had previous trouble with some of these men.
For example, Chester Kayne and he started a debate in the washroom, and according
to Taylor, after it had started Kavne started calling him names . At another time
he heard Bates run out in the aisle and yell, "Men, here comes Taylor come on,
let's get up in the toilet , because Taylor is going up in the toilet and he will get
something started." Taylor testified that from that day on he didn't bother to co to
the toilet any more to wash his hands. As Taylor had been warned by General
Foreman Token not to leave his job when he saw these men he decided not to leave
his machine
. The Trial Examiner permitted Taylor to testify, over the objections of the General
Counsel, to the jobs he previously had held on the ground that this testimony would
later on be connected up to become pertinent in the inquiry. An examination of
this testimony does not disclose the relevance to this proceeding and accordingly
is not being used in this decision.
(d) Hord, a member of Respondent, worked the same shift as Taylor but on
the fourth floor where his department steward was Paul Thome. He knew Stanley
Waszkiewicz as a committeeman . He credibly testified that after lunch on March 25.
1958, Stanley approached him and started a conversation by asking if anybody had
signed any authorization cards and Hord told him that be-had done so Stanley
asked Hord if he would like to get it back and Hord said, `.Well, the way I understood
LOCAL 212, UAW 963
it, I thought the rest of them had signed cards ." Hord was a new employee. He
testified that nobody had ever told him any different and he had just taken it for
granted that by passing out the literature up there that it was all right. He was
asked what did Stanley say to him at that point and he replied, "He asked me if I
would like to get the card back and he said that there hadn't been anybody on the
fourth floor that he knew of that had signed a card." 11 After Stanley had said this,
Hord said that he would like to get the card back and testified that Stanley volun-
teered to go down with him. He did not talk to his foreman first to get permission
before he went down from the fourth floor and when he and Stanley reached Andy
Tencza, Stanley told Andy that Hord wanted to get his card back and Andy said
"Let's go over and get it back." Hord testified that when they arrived at Taylor's
machine Stanley started the conversation saying that Hord wanted his card back.
From then on Hord substantiates the testimony of Taylor and the testimony of
Hubbard with respect to the relative position of the parties just prior to the fight.
He changed his testimony to conform with what he apparently had said in a state-
ment which he had made right after the fight, and corroborated Taylor's testimony
in that Taylor told him to come back after the others had left and that he would
give him his card back. He could not remember seeing Taylor on company time
and he did not think that he asked Stanley to accompany him to get his card back and
Stanley did not indicate that he knew who gave him the card or where Taylor worked
but he did indicate to Hord that the two should go down and get Andy, but Stanley
did not tell him that Andy was the chief steward for department 57.
(e) Employee LeVasseur also distributed cards for the Society of Skilled Trades.
He worked on the same shift as Taylor and in the same department. His foreman
was Fred Hambilton and his steward is Holstein. Holstein's machine is alongside
of his and in the latter part of February or the first part of March, Holstein came
over to LeVasseur and told him that he had heard he was distributing cards and
literature. LeVasseur told him he did not see anything wrong with that as he just
laid the cards down and the fellows knew what it was all about anyway. Where-
upon Holstein told him that he should not have done it, that there was no need of
changing a horse in the middle of the stream or something to that effect. LeVasseur
told him that they at least should have a voice in the Union that they were in the
minority and that was one way of getting recognition, by having a voice, by the
skilled tradesmen having a voice in the Union. Holstein told him that that was all
taken care of at the meeting that he had just returned from in New Jersey. LeVasseur
testified that he did not believe that. George Nicholson, committeeman for Re-
spondent told LeVasseur about the meeting in New Jersey and told him that he should
not have distributed the cards and literature and not to do it again. This conversa-
tion with Nicholson took place before the start of the shift. Nicholson told LeVasseur
that he had better stop putting out his literature and that if the thing ever came to a
vote that the Respondent had better win. After the conversation with Holstein and
Nicholson, LeVasseur passed out literature only once more, about a week later.
LeVasseur testified that jobbing shops were paying more in wages than the skilled
trades were getting at Chrysler by about 60 cents an hour and that there was agitation
among the men for higher wages.
(f) Marvin Hurd, who operated the machine next to Taylor, credibly testified that
during the week before March 25, Chief Steward Andy Tencza solicited him during
working hours for a contribution as two employees were retiring. Hurd gave him
whatever Andy said he should and Andy said, "I don't know whether to ask Taylor
for a donation or not, because we're going to try to get him put out of here legally
tomorrow." He asked Hurd what he would do and Hurd replied, "I wouldn't ask
the man for no donation if I was trying to get him fired." Andy responded by
saying, "Well, I'll not."
Taylor was not solicited by Andy. Andy testified in effect that the reason he
never solicited Taylor was because of the earlier trouble over Taylor's journeyman
status and Taylor's union activities, yet Andy had testified that he and Taylor had
shaken hands after their "understanding" that Taylor could talk for his union and
Andy would follow up by talking for Respondent. If they had shaken hands and
Andy did want to be on friendly terms with Taylor, it would seem that a mutually
agreeable common ground would be that of fellowship in bidding a fellow worker
goodby upon retirement . Accordingly I do not credit Andy's version of why he did
not solicit Taylor, but credit Hurd's version.
11 The Trial Examiner has no way of knowing whether Stanley actually knew if anybody
on the fourth floor signed a card but the facts are that several employees on the fourth
floor had signed cards.'
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Credibility Resolutions
It is the great responsibility of Trial Examiners to make findings of fact in cases
such as this. And as can be imagined in the dynamic field of labor-management
relations, feelings can run high and tempers short and the ability of an eye witness
to see events with the clarity of a trained observer having no interest in the matter
whatsoever is, to say the least, considerably weakened. Accordingly the demeanor
of witnesses was studied at the trial and the record with the conflicting versions
was weighed. Certain imponderables have been noted in the record and have
been considered.12
There is no question but that Taylor was aggressive. Two instances bring this
out: (1) when he took upon himself the job of distributing the literature on the
fourth floor where the committeemen of Respondent worked; and (2) when he
distributed the handbill to one of Respondent's stewards, Paul Thorne, and tried
to get him to take it and read it. Likewise there is sufficient testimony that Respond-
ent's committeemen and stewards knew of Taylor's activity and the very act of
Thome's taking Respondent Committeeman Waszkiewicz from the fourth floor to the
first floor to point out Taylor to him shows the concern that Respondent's agents
had over Taylor's activities. Also Respondent's vice president testified respecting
this concern. Respondent even had a meeting of agents at which time they decided
how they wound counteract this SOS activity. Committeeman Waszkiewicz himself
admits that his policy when he sees an employee doing something not approved by
the rules, is to go to him and straighten him out, call his attention to the rules.
However even though he said that Taylor was distributing this literature in violation
of the rules he did not go to Taylor at any time. Rather he went only to General
Foreman Token. In the light of this and other testimony, such as Taylor's testimony
that Holstein told him, "We're going to throw you out of here if you don't stop
passing that Society literature out"; the "concern" that Respondent Vice President
Czerwinski had with respect to Taylor's discharge; the earnest request by George
Nicholson, another of Respondent's committeemen, begging Taylor to represent him
in a grievance; the fact that he knew of the discharge ahead of Taylor; the fact that
none of supervision of Chrysler, whose duty it was to maintain order and see that
work was being properly performed, testified that Taylor distributed literature on
company time, which was the testimony of some of Respondent's witnesses, leads
me to credit generally the testimony of witnesses for the General Counsel par-
ticularly that of Taylor, Hurd, Hubbard, and Employer's supervisors. Except for
Taylor, these other witnesses have no ground for bias yet they corroborate Taylor.
This, plus the demeanor of all witnesses, leads to my credibility determinations.
B. Defenses and concluding findings
One of Respondent's defenses, in effect, is based on the ground that it could not
restrain or coerce employees within the meaning of the Act by virtue of the fact
that its stewards and committeemen executed the duty to see that the contract
between Respondent and Chrysler was obeyed as to its working conditions and when
violations were noted to bring them to the attention of Chrysler's supervisors.
Specifically, they called attention to sections 4 and 5 of the September 1, 1955, con-
tract which prohibits distribution of literature on the Employer's property 13 and
solicitation of the funds on Employer's property, respectively. The defense goes
that as they saw Taylor violate these sections they called the attention of the Em-
ployer to them like they called the attention of General Foreman Token to the
fight by Taylor. This defense lacks merit for three reasons: (1) They themselves
violated the contract as witnessed by the solicitation of funds by Chief Steward
ii "To say that the Board must disregard what preceded and what followed the . . .
[activity in question] would be to require it to shut its eyes to potent imponderables
permeating this entire record. The detection and appraisal of such imponderables are
indeed one of the essential functions of an expert administrative agency," [Mr Justice
Douglas, International Associatoon of Mach4i9sts etc., Lodge No. S5 (Serrtick Corp) v.
N L R.B , 311 U S 72, 79 ] See also the section entitled "Credibility," particularly cases
cited therein in the Intermediate Report of Trial Examiner Henry S. Salim in Common-
wealth Extension Corporation, Case No 24-CA-1042, issued on October 28, 1959. As no
exceptions were filed, the decision automatically becomes the decision of the Board, but
it is not printed. Accordingly I'am reproducing excerpts thereof in an addendum attached
hereto.
is The question of law as to whether section 4 is valid or illegal as being too broad and
restrictive, need not be reached in this case. I assume, without deciding, that the rule
is valid.
LOCAL 212, UAW 965
Tencza, and leaving their work stations without permission; (2) they never invoked
the contract against solicitors other than Taylor; and (3) the request for a discharge
on the ground of a fight was only a pretext. They had requested Taylor's discharge
before the Employer could have determined the facts of the case and their motive
remained the same as it was a month earlier when they requested the discharge of
Taylor because he was agitating for the SOS.14 It is abundantly clear from testimony
of Czerwinski that the employer had a fixed policy that the one who strikes a blow
is paid off. With full knowledge of this policy one who insists on invoking the
policy causes a discharge.15 Further, the request for discharge made early in March
was dropped when Token told Waszkiewicz that Taylor was only distributing litera-
ture during his lunch period.
The General Counsel also established by a preponderance of the evidence that
no requests to discharge employees for violation of a working rule had been made
prior to Taylor but that once afterward a request was made. This fact linked
with the fact that Respondent's Committee Chairman Nicholson begged to represent
Taylor yet neither he nor Respondent's vice president did anything with respect to
Taylor's grievance except attend the meetings and tell Taylor he had no case, lead
me to infer that not only was the request to discharge a pretext but also that Re-
spondent never intended to represent Taylor in the prosecution of his grievance and
by such action of deliberate inaction seal Taylor's discharge without further recourse.
Another defense is that the issue is limited solely to Taylor (Taylor's discharge)
as activities of others for the Society of Skilled Trades, such as that of Leo LeVasseur,
were carried on without restraint or coercion. This blandly assumes that once
a union becomes the bargaining agent for employees, any restraints or coercion it
applies to its members can no longer be illegal. Of course this proposition is
false Section 7 of the Act gives employees certain rights against both employers
and labor organizations , namely, the right to joint or not to join and to engage in
concerted activity free of restraint or corecion (within an exception not pertinent
here). The law is clear that unions may apply their own sanctions with respect to
membership so long as these do not coerce or restrain yet we know any sanction
would tend to interfere. Employers cannot interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act. On the
other hand, a labor organization or its agents may interfere with but not restrain or
coerce. Interference with these rights such as providing reasonable uniform rules
of conduct of members including loss of membership for engaging in dual union
activities would not violate the law, but acts that restrain or coerce are illegal. For
example, to threaten an employee with physical violence should he disobey a union
rule, in itself reasonable, would be coercive, thus to threaten an employee with
physical harm for crossing the union's picket line is coercive. Likewise it was
coercive for Committeeman Waszkiewicz and Chief Steward Tencza to descend upon
Taylor with an upraised cane and demand an authorization card from Taylor saying,
we're not going out of here until you get it you had better start getting
it." Obviously, and I so find: (1) this is an actual threat of physical harm unless
Taylor should refrain from exercising his rights under Section 7 to secure authori-
zation cards. Likewise the following incidents violate Section 8(b) (1) (A) of the
Act as they also restrain or coerce employees in the exercise of their guaranteed
rights; (2) Steward Kaus' statement to Taylor after his hire that Taylor was not
going to work there because he had no journeyman's card; (3) Committee Chair-
man George Nicholson's statement that Taylor had to deposit his withdrawal card
2 weeks after commencing work or he could not work there; (4) Steward Holstein's
threat to Taylor, "We're going to throw you out of here if you don't stop passing
that Society literature out"; (5) Chief Steward Tencza's attempt on March 24, to
transfer Taylor to another machine in the corner out of the way was an implied
threat that if he did not stop his activities for SOS he would be discriminated against
by being shifted from one job to another; and (6) Respondent's request to discharge
14 Although Vice President Czerwinski testified that after handling some 3,000 discharge
cases he had become immune to them, he said he was "upset " over Taylor's discharge as
Taylor might start a case like this one. His knowledge of Taylor's character was based
on, "Well, it all revolved on the SOS , the organizational drive in the plant"
11 Respondent 's committeeman , Waszkiewicz , testified as to his general policy of correct-
ing members ' behavior, "Well , if you observe any person doing wrong or on the verge
of what might be getting into trouble, you try to keep the individual straight." Yet as
to his policy with respect to Taylor, he testified, "All I wanted was the information
whether the man was doing the thing or not [ soliciting by distributing literature]." And
he never talked to Taylor nor asked Chief Steward Tencza to do so.
577684-61-vol 128-62
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taylor on the ostensible ground of the fight. It appears that the real reason for
the discharge was that Taylor was engaging in activities on behalf of the Society
of Skilled Trades. Accordingly the ground of fighting is merely a pretext. It is
clear from the testimony above that the invocation of the working rules were
obviously done when it served Respondent's own purposes. Also, the evidence shows
a deliberate plan on the part of Respondent starting with the meeting as testified
to by the vice president, of stewards, committeemen, and officers of Respondent to
map out its strategy to combat the Society activity.
Thus the raised cane, the refusal to leave Taylor's area without Hord's card; the
deliberate unnecessary obscene language hurled at a person known to be aggressive
and independent; the careful restraint of Tencza and Waszkiewicz not to strike back
at Taylor-an act totally out of character with their swearing and actions in the
plant; Tencza's statement to Hurd, made when he asked Hurd for a contribution,
that they were going to get Taylor fired legally; and the presence of witnesses to
the fight, such as Kayne who, except for the knowledge that there was going to be
a fight, had no business in the area as his work station was not within the area of
the fight. From these facts, a rumor that the committeemen were going to tear
off Taylor's shirt which had on it the large emblem of his union could well originate,
and I find that there was this rumor in the shop, and this rumor was based upon
the activities of Respondent's agents. In view of these findings and because the
remedy would be the same in any event, it is unnecessary to rule on whether or not
Nicholson's or Holstein's comments to LeVasseur violated the Act.
The charge as filed alleged a violation of Section 8(b)(2) of the Act as well as a
violation of Section 8(b)(1)(A). However the complaint does not mention a vio-
lation of 8(b)(2). As the remedy requested by the General Counsel is the usual
remedy for a violation of Section 8(b) (2) I will find a violation of Section 8(b) (2)
of the Act. Obviously there was an attempt to cause the Employer to discharge
Taylor in derogation of his right to engage in protected concerted activities when
Committeeman Waszkiewicz asked Token to fire Taylor early in March. Likewise
as I have found the fight was deliberately provoked, the request to fire Taylor
for fighting was likewise an attempt to cause Taylor's discharge in violation of
Section 8(b)(2). As the parties litigated this aspect of the case, the law of the
Board is clear that I should rule on the issue.
As the acts of chief steward, committeemen, and vice president of Respondent
acting in apparent authority are attributable to Respondent, I find it, as well as its
agents, violated the Act as above.16
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the employees described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes obstructing commerce and the
free flow of commerce.
V. THE REMEDY
I will recommend the usual remedy requiring Respondent to cease and desist from
engaging in the conduct found above under section III, B, (1), (2), (3), (4), (5),
and (6).
Additionally, as urged by the General Counsel in his brief, I shall order Respondent
to make whole Taylor for any loss of pay he may have suffered by reason of Re-
spondent's causing his discharge by Chrysler, and I shall direct Respondent to exer-
cise good-faith action in pursuing contractual rights, including arbitration, in
securing Taylor's reinstatement to his former position or its substantial equivalent.
Additionally, I shall order Respondent to notify Chrysler that it engaged in a
deliberate plan to cause Taylor's discharge and to ask Chrysler to give consideration
of this action and to make any exceptions to its policy necessary in order to reinstate
Taylor.
Because the evidence indicates that Taylor was interrogated and questioned closely
by Respondent's agents and coerced with respect to his journeyman status when
hired, and as this may occur in the future, I shall order Respondent to write him a
letter over the signature of its president that he is entitled to job assignments on a
nondiscriminatory basis as a journeyman based upon letters showing over 10 years'
experience.
It is clear that the Board has these powers to fashion any remedy reasonably
related to the violation of the Act. N.L.R.B. v. Express Publishing Company, 312
79 See Gimbel Brothers, Ino., 100 NLRB 870, 877, footnote 17.
LOCAL 212, UAW 967
U.S. 426, Phelps Dodge Corp. v. N.L.R.B. 313 U.S. 177. It is reasonable to require
the Respondent to remedy its unfair labor practices by reimbursing Taylor for
wages lost, inasmuch as it succeeded in getting him fired in carrying out a scheme
which under the Act is illegal. Even if I were to find no violation of Section 8(b) (2)
here I would order the same remedy as it is the way to effectuate the policies of the
Act. The following are authorities for the above reasoning. Pacific Coast Marine
Firemen, Oilers, Watertenders and Wipers Association, Ind. (Pacific Maritime As-
sociation), 107 NLRB 593, 594, 595; Hudson Motor Car Company, 34 NLRB 815,
826; Star Publishing Company, 4 NLRB 498, 505; J. I. Case Company, 198 F. 2d 919
(C.A. 8); Modern Motors, Incorporated, 198 F. 2d 925, (C.A. 8); United States
Cold Storage Corporation, 96 NLRB 1108, 1112; Talladega Cotton Factory, 106
NLRB 295, enfd. 213 F. 2d 208 (C.A. 5) where the Board reinstated a supervisor
under 8(a)(1); George W. Reed, 206 F. 2d 184 (C.A. 9); Bausch & Lomb Optical
Company, 107 NLRB 790; and D'Arcy Company, Inc., 115 NLRB 1320.
In order to insure expeditious compliance with the recommended backpay order,
I shall recommend that Chrysler, upon reasonable request, make any pertinent
records available to the Board and its agents.17
As the violation found is against basic rights of employees and seemingly would
be practiced against employees of any employer, I will cause Respondent to cease
and desist doing these acts with respect to employees of any employer.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Chrysler is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
3. By attempting to cause and causing Chrysler to discharge Rholo Taylor in
order to keep him from distributing literature and authorization cards on his own
time for a union other that Respondent, Respondent engaged in unfair labor practices
within the meaning of Section 8(b) (2) of the Act.
4. By the above conduct, and by otherwise restraining and coercing employees
of Chrysler in the exercise of rights guaranted them by Section 7 of the Act, as
found above, the Respondent has engaged in unfair labor practices within the
meaning of Section 8(b) (1) (A) of the Act.
[Recommendations omitted from publication.]
11 P. W. Woolworth Company, 90 NLRB 289.
ADDENDUM
CREDIBILITY
Respondent in its brief has gone into great detail with respect to the question of
credibility as this is a case where the General Counsel's witnesses are contradicted
on all the salient issues by the witnesses for the Respondent. It might be well,
therefore, to consider this matter of credibility in some detail.
After observing the witnesses, analyzing the record and inferences to be drawn
therefrom, and reconciling where possible, the conflicting evidence, the Trial
Examiner concludes that the substantive testimony of the General Counsel's wit-
nesses, in the main, is reliable because it is consistent with certain undisputed and
demonstrable facts in this case, the details of which are discussed in later sections
of this report. This conclusion is based also on my observation of the witnesses
with respect to the accuracy of their memories, their comprehension and their
general demeanor on the stand in answering the questions put to them. However,
it is not meant to imply that the trier of these facts accepts as credible everything
that was said by all the General Counsel's witnesses. It suffices to say, in the words
of Judge Learned Hand, that: "It is no reason for refusing to accept everything
that a witness says, because you do not believe all of it; nothing is more common
in all kinds of judicial decisions than to believe some and not all." 4
s * * s s s ►
In crediting some witnesses and discrediting others, given weight to certain evi-
dence as against other evidence, drawn inferences from circumstantial and con-
4 N.L.R.B. v. Universal Camera Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on
other grounds, 340 U.S. 474.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
flitting evidence, and come to certain conclusions , the Trial Examiner has neces-
sarily had to detect and appraise various "potent imponderables permeating the
entire record." 5 One of these "potent imponderables" is the demeanor of witnesses
in testifying, particularly where the trier of the facts' findings rests on the evaluation
of the credibility of oral testimony. The Board has recognized that the "demeanor
of witnesses is a factor of consequence in resolving issues of credibility." 6 Cred-
ibility findings rest to varying degrees upon the evaluation placed by the trier of
the facts upon the demeanor of witnesses. This type of evidence which does not
appear in the record and is comprised of elusive intangibles and "potent im-
ponderables" which are difficult to capture and to describe by written words, often
make it difficult for the trier of the facts to convey or describe the impression which
a particular witness makes upon him. This difficulty is inherent in making cred-
ibility findings where the trier of the facts must choose between discordant versions
of witnesses whom he has seen because the record does not reveal that part of the
evidence which may have determined his choice.?
Judge Learned Hand describes it as "[findings] based on that part of the evidence
which the printed words do not preserve. Often that is the most telling part, for
on the issue of veracity the bearing and delivery of a witness will usually be the
dominating factors, when the words alone leave any rational choice. . . . nothing
is more difficult than to disentangle the motives of another's conduct-motives fre-
quently unknown even to the actor himself. But for that reason those parts of the
evidence which are lost in print become especially pregnant " 8 As the Board
stated in Roadway Express, Inc., 108 NLRB 874, 875: "Credibility findings may
rest entirely upon evidence through observation which words do not, and could not,
either preserve or describe."
Of course, in the type of issues disputed in this proceeding, where the witnesses
of the General Counsel and Respondent are in sharp conflict and diametrically
opposed in their respective versions as to what actually occurred, the process of
hearing can produce only a belief concerning what the facts are, rather than a
disclosure of the facts themselves. The trier of the facts must, therefore, be content
to have a belief concerning the facts, rather than knowledge of them. In crediting
or discrediting a witness ' testimony, there are gaps to be filled, ambiguities to be
resolved, inconsistencies to be considered which cannot, in many instances, be
determined exclusively upon the basis of the cold record. The trier of the facts
is often acutely aware that a witness he is crediting may, in testifying, have been
vague, hazy, inconsistent and lacking in the attributes of the classic fictional witness
whose demeanor is impeccable and testimony perfect in all regards. Unfortunately,
the realities of litigation are otherwise. Witnesses are on occasion fouled by the
air of bias, partisanship, overzealousness , and other emotions to which the human
flesh is subject . Witnesses do not emerge from antiseptic surroundings nor do they
testify in a vacuum which protects them from the failings to which the human mind
and spirit are subject. Moreover, unconscious and unintentional inconsistencies
understandably creep into a record when it is considered that witnesses testify from
memory as to events and conversations that may have taken place long before the
hearing was held and the testimony given.
If in order for the trier of the facts to credit a witness his testimony must be found
to be lucid, unambiguous , and consistent in all details , there would be few, if any,
instances , where witnesses could meet such exacting and unrealistic requisites. This
would result in an inability to "make specific credibility findings as to testimonial
evidence necessary to support material findings of fact"; one of the most vital func-
tions of a Trial Examiner.9
Therefore, to point out inconsistencies in the testimony of a witness credited by the
trier of the facts adds nothing and may amount to petty carping when it is not kept
in mind that: "It is no reason for refusing to accept everything a witness says,
because you do not believe all of it; nothing is more common in all kinds of judicial
5 The International Association of Machinists etc. (Serrick Corp ) v N.L R B , 311 TJ S
72, 79
8 Hadley Manufacturing Corporation , 108 NLRB 1641, 1643; Roxboro Cotton Mills, 97
NLRB 1359, at 1368 where the Board said : " . . the Trial Examiner made no reference
to the demeanor of either witness-as to which it is our policy to attach great weight."
4 N L.R.B. v James Thompson t Co , Inc., 208 F. 2d 743, 746 (C.A. 2) ; N.L.R B. v.
Chautauqua Hardware Corp., 108 F. 2d 750, 751 (C.A. 2) ; Casa Grande Cotton Oil Mill,
110 NLRB 1834, at 1836.
8 N L R.B. v. Universal Camera Corporation, supra, 190 F. 2d 429, 430, 431 (C.A. 2).
9 Cf Casa Grande Cotton Oil Mill, supra.
PETERSEN CONSTRUCTION CORP., ETC. 969
decisions than to believe some and not all." 10 Accordingly, the one who hears and
sees the witnesses testify must, where the conflicting versions are diametrically op-
posed, often necessarily depend on subtle interpretations, delicate nuances and inde-
finable impressions derived from observing the witnesses testifying which the cold
record does not convey. Of course, the record often reveals, exclusive of so-called de-
meanor testimony, where the truth lies. It is only where, at the end of the trier of
the facts' deliberations, that his resolutions of credibility still remain balanced in
doubt that recourse must often be had to the witnesses' demeanor.
It is often quite difficult, if not impossible, in some instances to describe by the
written word, the impressions derived from observing a witness testify. Not only
would it not serve any useful purpose but it would unduly prolong and add nothing
to an Intermediate Report to describe a witness as having a furtive look, a nervous
twitch, becoming flushed in the face or perspiring freely. Those indicia are better
left unsaid in the hope that judgment as to such matters should be left to the sense
and experience of the one who observed the witnesses, guided, of course, by stand-
ards laid down by the Board and the courts.
Then too, in evaluating a witness' testimony as credible or incredible, which is
based exclusively on demeanor evidence, the trier of the facts must necessarily adopt
an empirical approach as he is not dealing with absolutes or generic matters. There-
fore, human factors, emotions, and the "intangible imponderables" present at every
hearing militate against the substitution of another's judgment as to where the truth
lies as, here again, different concepts, indicia, and standards, not only legal but also
ethical may be applied, depending on what the individual trier of the facts conceives
and defines these factors to be and how he relates them to the peculiar circumstances
present in any given case in which a credibility finding is made based upon demeanor
testimony.
By this discussion of the evaluation placed upon the demeanor of the witnesses
in testifying, it is not intended to convey the impression that consideration was
given exclusively to this type of evidence in this proceeding in determining credibility.
This was only one factor. Concomitant consideration was given equally to the
surrounding circumstances, and the consistency or inconsistency of individual wit-
nesses' testimony with uncontroverted evidence and demonstrable facts in determin-
ing which version should be credited. Moreover, in crediting one version as against
another, the trier of the facts often derives considerable aid in comparing the
witnesses' testimony on direct examination with what he testified to on his cross-
examination. As was succinctly stated in an Intermediate Report: "A would-be
deceiver weaves a tangled web, and cross-examination is usually an effective device
to enmesh the perpetrator of the embellished lie." 11
[Excerpts from Intermediate Report of Trial Examiner Henry S. Salim in Com-
monwealth Extension Corporation, Case No. 24-CA-1042 issued October 28, 1959.]
10 Footnote 4, supra
u Santa Clara Lemon A ssociation , 112 NLRB 93, 104.
Petersen Construction Corp .; Southern California Chapter of
the Associated General Contractors of America; Building
Contractors Association of California, Inc.; Engineering and
Grading Contractors Association , Inc.; and Home Builders
Association and William Van Buskirk
Hod Carriers and Common Laborers Union Bakersfield Local
220, Santa Barbara Local 195, Los Angeles Local 300, Bishop
Local 302, Los Angeles Local 345, Pasadena Local 439, Long
Beach Local 507, Ventura Local 585, Santa Barbara Local 591,
Santa Ana Local 652, Pico Local 696, Hollywood Local 724,
San Bernardino Local 783, Wilmington Local 802, Pomona
Local 806, Los Angeles Local 923, El Centro Local 1119, Los
128 NLRB No. 123.