Southwest Welding and Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 20, 1953

103 N.L.R.B. 788 (N.L.R.B. 1953)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SAND WORKERS OF AMERICA, CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all of such activities,
except to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
ONONDAGA POTTERY COMPANY,
Employer.
Dated -------------------- By -------------------------------------------
(Representative ) , (Title)
This notice must remain posted for 60 consecutive days from the date hereof,
and must not be altered , defaced , or covered by any other material.
SOUTIIWEST WELDING AND MANUFACTURING COMPANY and EDWIN J.
GAULDING . Case No. 21-CA-1347. March 20, 1953
Decision and Order
On December 30, 1952, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, findings
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the General Counsel's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following addi-
tions and modifications.
The sole issue in this case is whether the discharge of Gaulding was
discriminatorily motivated. The complaint alleges that the Respond-
ent decided to discharge Gaulding late in the afternon of January
10, 1951, because of his participation in a grievance protestation or
work stoppage earlier that afternoon. The Respondent asserts that
the final decision to release Gaulding was made at noon on that same
day and was caused by Gaulding's lackadaisical attitude toward his
assignments during working hours. The Trial Examiner deemed it
unnecessary to decide whether the decision to discharge Gaulding was
1 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 [ Chairman Herzog and
Members Houston and Murdock]
103 NLRB No. 92.
SOUTHWEST WELDING AND MANUFACTURING COMPANY 789
made at noon or late in the afternoon. He reasoned that if the de-
cision was made at noon, it was justified by Gaulding's proved derelic-
tions, and if made after the work stoppage, it was warranted by the
illegality of Gaulding's participation in the concerted action. The
Trial Examiner therefore concluded that in no event could the dis-
charge have been unlawful and so the 8 (a) (3) allegation of the
complaint should be dismissed.
On the entire record we are satisfied, as the Respondent contends,
that the decision to discharge Gaulding was made shortly after he
ignored his foreman's directions on the morning of January 10, and
because of his repeated neglect of duties. As more fully discussed in
the Intermediate Report, Gaulding worked on the night shift for
about 10 days after he was hired on December 19, 1950. His then
Supervisor Totman testified, without contradiction, that during this
period Gaulding regularly came to work 20 to 30 minutes late, without
excuse. Totman complained of Gaulding's lethargic interest to the
Field Superintendent Melan. On or about December 31, Superin-
tendent Melan reprimanded Gaulding for his tardiness, and had Tot-
man tell Gaulding that he would be transferred to the day shift in
order that a closer watch might be kept over him. Melan testified
that during the 10 days from January 1 to January 10, while Gaulding
was on the day shift, he remained unsatisfied so far as Gaulding's
attention to his duties was concerned. And finally, on the day of his
discharge, Gaulding reported for duty at 8: 30 a. in. and was directed
by his foreman, Simmons, to the fourth floor to work. One and a half
hours later, Simmons could not find Gaulding and returned to the
second floor where he found him engaged in conversation with brewery
employees 2
Both Simmons and Melan creditably testified that at about noon,
after Simmons recommended the discharge of Gaulding, they discussed
the matter, agreed to release him, and telephoned the main office to have
Gaulding's final check sent to the job by the end of the day shift.
Gaulding did not deny the foregoing testimony about his inattention
to work. He attempted to explain the morning incident on the ground
he did not know Simmons to be his foreman. Like the Trial Examiner,
we do not credit this explanation, for Gaulding had already worked
under Simmons about 9 days, and Simmons was in direct charge of
the day shift.
7 Gaulding's explanation, as a witness , of this very incident, supports the Respondent's
assertion of his indifference to work. He said that because he did not know exactly what
his assignment was. 11. . . it is probably customary as a matter of protection to the
boss, yourself and everybody else that you kindly [sic] get out of sight . . . and probably
the best thing for me to do was to get out of sight or get around where there was some
activity going on."
257965-54-vol . 103-51
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Against this clear evidence supporting the Respondent's assertion
as to the time and reason for Gaulding's dismissal, the only evidence
offered at the hearing that might indicate an unlawful motivation is
Gaulding's resort to the Union for a small amount of reporting pay
due him. The Employer had not denied that this money was due, and
indeed, when first asked for it, Foreman Totman did not question its
propriety. In his exceptions, the General Counsel concedes that
if the decision to discharge Gaulding was made at noon, the record does
not support a finding of unlawful motivation.
In view of the foregoing, we find that Gaulding was discharged be-
cause his work habits made him an undesirable employee, and that
the decision to release him was finally made at about noon on January
10, 1953. We therefore find it unnecessary to decide whether the
concerted activity that occurred later that afternoon was a strike in
violation of the no-strike clause in the existent contract, or was merely
the processing of a grievance.
As the record as a whole does not support the allegation that Gauld-
ing was discriminatorily discharged in violation of Section 8 (a) (3)
of the Act, we shall, like the Trial Examiner, dismiss the complaint
in its entirety.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Re-
spondent, Southwest Welding and Manufacturing Company, Alham-
bra, California, be, and it hereby is, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed and upon complaint and notice of hearing issued and
served by the General Counsel, and an answer having been filed, a hearing
upon due notice was held at Los Angeles, California, before the undersigned Trial
Examiner on November 12 and 13, 1952, involving allegations of unfair labor
practices in violation of the National Labor Relations Act (61 Stat. 136),
herein called the Act. The allegations, in substance, are that the Respondent,
in violation of Section 8 (a) (1) and (3) of the Act, discharged its employee,
Edwin J. Gaulding, because he had engaged in concerted activities protected
by the Act. All parties were represented by counsel, were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, to introduce evidence
relevant and material to the issues, to argue orally upon the record, and to file
briefs and/or proposed findings. The General Counsel's representative made an
oral statement on the issues at the close of the evidence and the General Counsel
and Respondent have filed briefs.
Upon the entire record in the case and from my observation of the witnesses, I
make the following :
SOUTHWEST WELDING AND MANUFACTURING COMPANY 791
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation, having its office and principal place
of business in Alhambra, California, where it is engaged in the fabricaton and
erection of heavy steel plate. Respondent performs work necessary to the
national defense and annually ships directly to points located outside California
products valued in excess of $25,000.
The Board's jurisdiction is conceded.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers , Iron Ship Builders and Helpers
of America , Local 92, is a labor organization affiliated with the American Fed,
eration of Labor. It is called herein the Union.
III. THE UNFAIR LABOR PRACTICES
From about December 1, 1951, to late March 1952, the Respondent was engaged
in the repair of brewery equipment at a site known as the Eastside Brewery.
During the entire period in question, it had a contract with the Union as the
bargaining representative of its employees, all of its employees engaged on the
project were members of the Union, and the Respondent recruited new employees
through the Union. Edwin J. Gaulding, an experienced welder, was employed on
this project about December 19, 1951, and worked continuously from that date
until his discharge on or about January 10, 1952. It is alleged that he was dis-
charged because of having engaged in concerted activities protected by the Act,
and there is no other issue in the case.
Gaulding's qualifications as a welder are admitted and it is also admitted that
the quality of his work was satisfactory. It is the Respondent's position that
he was frequently absent from his job during working hours and that his dis-
charge was predicated upon that fact. The Respondent contends, and its wit-
nesses testified, that the decision to discharge Gaulding was made by his fore-
man, Loyal F. Simmons, in the forenoon on or about January 10 when he allegedly
was absent from his job for an hour or longer. It is the General Counsel's posi-
tion that the discharge did not occur until the afternoon of that day, after a
work stoppage had occurred, and that it was predicated upon Respondent's belief
that Gaulding had instigated the walkout. In the alternative, the General
Counsel contends that, assuming the decision to discharge to have been made
before the walkout occurred, it was nevertheless unlawfully motivated because
predicated upon the fact that Gaulding had filed grievances with the Union
which had aroused the displeasure and resentment of the job superintendent,
Melan John Marinovich, referred to hereinafter and by the witnesses as Melan.
Gaulding was employed on a night shift with hours running from 4: 30 p. in.
to midnight. The foreman of this shift was Clayton Totman and under him
was an assistant foreman or pusher. On or about December 31, he was trans-
ferred to a day shift at Melan's direction. At or about starting time on Decem-
ber 27, a sharp exchange occurred between Gaulding and Melan. It arose out of
Gaulding's claim for 4 hours show-up pay for the evening of December 24, and
Melan's reprimand for not reporting to work on time.
On Friday, December 21, the last working day before Christmas Eve, Gaulding
was absent from his work with permission of his foreman, Totman. He reported
for work on the following Monday and only then learned that it had been decided
by the employees that they would not work that evening, it being Christmas Eve.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following afternoon, according to Gaulding, he went to the union hall, re-
ported that he had received no notification that his shift would not work on
Christmas Eve, and inquired if he was entitled to 4 hours show-up pay as provided
by the Union's contract with Respondent. He was informed that he was. He
testified that he explained the matter to Totman and that Totman said, "Of
course, if that is the way it is, I will pay you." The conversation with Totman
occurred on Wednesday, December 26. On the following evening when he re-
ported for work, he observed Mike Reagan, the Union's business agent, in the
plant and Reagan told him that he had informed Respondent's "officers" that
Gaulding would have to be paid the 4 hours show-up pay demanded by him.
According to Gaulding, he then went to the changeroom where Melan informed
him, "We go to work here at 4: 30" and "You better get your ass going here
before you get docked."
According to Gaulding, he did not know who Melan was at this time ; in-
quired, "Well, who are you?"; Melan replied, "I am foreman on days" ; Gaulding
then said, "If you are on days, you don't have anything to say with me," where-
upon Melan replied, "That's what you think . . . I am running this job" ;
Gaulding told Melan that under the Union's contract, he was required to take
orders from no one except his foreman, and that if there was "any criticism
to be made or orders to be given" as far as he was concerned they would have
to come from Totman' Further, according to Gaulding, Melan then became
"rather abusive," referred to Gaulding as a "trouble maker and lots of
other things," and Gaulding retorted that he was going to report Melan to the
Union for "being abusive" and "for getting out of line and giving [him] orders."
The exchange was concluded when Melan said, "Well, I will get you on my job
and it will be your ass."
Following this argument, Gaulding told his foreman, Totman, that he did
not feel like working and wanted to go to a union meeting to complain about the
situation and Totman told him that he could take the latter part of the shift off.
Gaulding attended the union meeting and made his report. He worked the
entire shift the following evening and at its end was informed by Totman that
Melan had directed that he be transferred to the day shift. According to
Gaulding, Totman also told him that his work had been satisfactory and that it
was entirely up to him whether he transferred or not, and he, Gaulding, replied
that he was perfectly willing to go on days and had rather work on days
Melan's version of his discussion with Gaulding on December 27 was that the
Union's business agent, Reagan, had informed him that Gaulding had complained
about not getting his show-up pay for Christmas Eve, and he, Melan, told
Gaulding "not to holler or raise any commotion" until he was actually short on
his check; that the time was made up on Fridays and paychecks were not out
until the following Wednesday or Thursday. Melan testified that the first he
knew of the matter was when the Union's agent came out and "got after" him
for shorting Gaulding 4 hours. It appears from Melan's testimony that it was
during this same conversation that he reprimanded Gaulding for not reporting to
work on time. "He was coming in from 10 to 20 minutes late every night,"
Melan testified. In response to his criticisms, Gaulding retorted, "Who the hell
are you to tell me what to do around here?" and "You are not so damned big."
Melan denied that he threatened to have Gaulding transferred to the day shift
in order to "take care of" him, though he admitted that he ordered the transfer.
He testified that this action was taken because of Gaulding's unexcused absences
from his job and in order that a closer watch might be kept over him. Totman,
concerning whom Gaulding testified, "he was a fine fellow to work with," while
testifying that,Gaulding was a good welder and caused him no trouble on the
'The contract, under rule 13 (e)^ provided- "Direct orders shall be given to the men
by the foreman or assistant foreman ( pusher)."
SOUTHWEST WELDING AND MANUFACTURING COMPANY 793
night shift , corroborated Melan 's testimony that Gaulding was frequently absent
from his job. According to Totman , his assistant foreman or pusher, and two
welders, had complained about Gaulding not staying on the job, and he had
reported the matter to Melan . He testified that his discussion with Melan
relative to transferring Gaulding to days was concerned wholly with the latter's
neglect of his work.
On the day of his discharge , Gaulding reported for work at the usual time
and found that the welding on the tank or vat on which he had been engaged
the previous day had been finished by the night shift. He testified that the
waited there for further instructions , as was customary when a job had been
brought to completion . According to him, he had received all of his work as-
signments since coming on the day shift directly from Melan, and was not
aware that Loyal F. Simmons was foreman of the day shift although he had
heard him referred to as a pusher . He waited some 30 or 40 minutes, during
which time he saw Simmons but Simmons did not speak to him. He then went
from the second floor on which he had been working to the fourth floor and
while there an inspector asked if he knew where Melan was and he volunteered
to locate the latter , not having yet received any instructions as to work. He
reported to the inspector as to Melan 's whereabouts and returned to the second
floor where he again saw Simmons. He asked Simmons about a work assign-
ment and according to him Simmons did not respond , whereupon he asked
Simmons, "Do you want me to go up to the fourth floor?" and Simmons said,
"Well , yes, I guess so." He then took his welding gear and went to the fourth
floor where after again asking Simmons for a work assignment , Simmons di-
rected him to work in a tank where another welder was already working.
Gaulding complained that two welders could not be accommodated in the
same tank , and that the welder already on that job had said he would come
out if anyone was assigned to work with him . Simmons did not press this
assignment but gave him other work to do which kept him occupied until noon.
Simmons, who testified that he regularly gave Gaulding his job assignments
after the latter came on the day shift, gave a substantially different version
of what occurred in the forenoon of the day Gaulding was discharged Accord-
ing to Simmons , Gaulding was working with a group of 3 or 4 employees and
their work on the second floor had been completed by the night shift. At about
8.30 a. in., he instructed them to move to the fourth floor and all except Gaulding
immediately started moving equipment . ( Admittedly , Gaulding , a welder, was
not required to move equipment other than his own gear. ) At 10 o'clock, ac-
cording to Simmons, Gaulding still had not reported to the fourth floor for his
work assignment and returning to the second floor Simmons found him there
engaged in conversation with brewery employees . He then directed Gaulding
to the fourth floor and gave him work assignments.
According to Simmons , Gaulding was a good welder but was frequently
absent from his job and on this last occasion of his inattentiveness to his duties,
he, Simmons , decided upon Gaulding's discharge and informed Melan of his
decision. Melan concurred . Simmons admitted that he had not spoken to
Gaulding about neglecting his work but testified that it was not customary
for him to reprimand employees before discharging them. Both Simmons and
Melan testified that the decision to discharge Gaulding was made during the
noon hour , and Melan testified that during the noon hour , or shortly after 1
p. in., he notified the office, some 3 miles away , to have Gaulding 's final check
made out and delivered to the Eastside job before 4 o'clock . This testimony
was corroborated by Alice A. Wright, a payroll clerk, whose testimony, how-
ever , in my opinion , showed no definite and distinct recollection of the hour
when she received the call from Melan , other than that it was after 1 p . in. The
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
check was not actually delivered until about 4 o'clock, and in the interim a
work stoppage among the welders had occurred.
Assuming without finding that the decision to discharge Gaulding was made
prior to the work stoppage, as Respondent's witnesses testified it was, I would
be inclined to credit Simmons' version of Gaulding's failure to report on the
fourth floor for work assignments as instructed, for otherwise, accepting Gauld-
ing's version of the incidents of that forenoon, there would have been no occasion
for a discharge and nothing which would have afforded a pretext for such action.
Assuming, as the General Counsel apparently contends, that Melan had Gaulding
transferred to the day shift for the purpose of finding a pretext for his discharge,
it would appear that some pretext would have been found which would offer at
least a plausible explanation for the discharge. It should be observed, however,
that it would not have been necessary for Melan to have brought Gaulding on the
day shift in order to discharge him because, as job superintendent, Melan could
have caused the discharge on any shift, and if all he needed or wanted was provo-
cation, that surely would have been furnished him when Gaulding, prior to his
transfer, challenged Melan's authority to reprimand him for reporting late to
work and, in effect, threatened to cut him down to size. Considering the testi-
mony of both on the exchange which occurred between them in the changeroom
on December 27, it is a little difficult to tell whether Melan was abusing Gaulding
or Gaulding abusing Melan, but if Melan had then and there discharged Gaulding
it is doubtful, to say the least, that a case against the Respondent would lie.
I am unable therefore to credit Gaulding's testimony that on this occasion Melan
said, in effect, that he would transfer Gaulding to days in order to have him
discharged. I would further think that some cause for provocation on Melan's
part existed when Gaulding prematurely, and without having first taken the
matter up with his foreman, caused the Union's business agent to approach the
Respondent about Gaulding's show-up pay. Clearly, the matter had not ripened
into a grievance for, as Gaulding testified, as soon as he explained the matter
to his foreman, Totman, he was assured that he would be allowed his show-up pay.
There were other portions of Gaulding's testimony which did not invite com-
plete confidence in his recounting of details, though he was on the whole an
intelligent and a very articulate witness. It seems unlikely that Melan, on the
occasion when Gaulding challenged his authority, would have represented himself
as being merely the foreman on the day shift when in actuality he was the job
superintendent in charge of the entire project and, even more so, it seems
unlikely that in the some 9 days that he worked on the day shift, Gaulding would
not have learned that Simmons was the foreman of welders on that shift.
Simmons devoted his entire time to supervision and, according to Gaulding,
there were no more than nine welders on the day shift. Joseph Keith, a welder
and witness for the General Counsel, who quit his job in protest of Gaulding's
discharge, admitted that he received all his job assignments and instructions
from Simmons. It is hardly credible, therefore, that up to the day prior to his
discharge Gaulding had no knowledge of Simmons' supervisory status and even
then thought he was no more than a pusher. It is also doubtful that Totman
would inform Gaulding on the occasion of his transfer that the latter need not
transfer unless he wanted to, when Melan had directed that the transfer be
made. However, despite these reservations on the candor and accuracy of
Gaulding's testimony, I found his version of what occurred in the forenoon of
the day he was discharged more coherent and convincing than Simmons' version
of the same subject matter, and I am inclined to believe, therefore, that Gauld-
ing's discharge did not occur until after he and the other welders had engaged
in a work stoppage. It is only necessary to say at this point that if the decision
to discharge were found to have been made before the work stoppage occurred,
SOUTHWEST WELDING AND MANUFACTURING COMPANY 795
it is my opinion that the General Counsel has not sustained the burden of proof
in establishing that it was unlawfully motivated. No finding is required as to
the actual time the decision was made because I am also convinced that if it
was arrived at after the work stoppage had occurred and was predicated on
Gaulding's participation in it , it was a discharge for cause and not in violation
of the Act.
The work stoppage began at about 2 or 2: 30 p. in. and lasted until near the
close of the day shift. It began when one of the welders working with Gaulding
complained of a smoke condition and Gaulding responded, "Well, it is too
smoky for me. Let's get out," whereupon the four welders working in that room
left their jobs and went to the restroom. There, according to Gaulding, they
discussed what could be done about a situation which admittedly was causing
some trouble among the employees.
From the start of the project, the Respondent had installed blowers in order
to clear the atmosphere of excessive smoke, but apparently some of the men
complained that with the blowers on it was too cold. Permission had been given
for the men to leave their jobs temporarily when the smoke condition became
too oppressive. During the discussion that occurred among the four welders,
Gaulding proposed getting the job steward and all the welders together for the
purpose of presenting a grievance. He left to get the steward and, according
to his testimony, talked to two other welders on the way, telling them that they
were going to present a grievance to the steward and have him take it up with
management. It seems clear from Gaulding's own testimony that it was the
result of Gaulding's activity that eventually all the welders, including the
steward, left their jobs and gathered in the restroom.
The Respondent became aware of the walkout at about 2: 30 but when Melan,
Sam Marinovich, Respondent's work's manager, and other officials attempted
to learn from the men the cause of the work stoppage, according to them they
were given no definite answers, the steward himself stating that he did not
know why the men had left their jobs. Eventually, Sam Marinovich called the
Union's business agent and at Marinovich's suggestion, he came to the job site
and attempted to learn the cause of the walkout. It appears that he questioned
the men in the presence of company officials, and Gaulding protested that it was
not proper for him to make such inquiries in the presence of supervisory per-
sonnel. According to Gaulding, Reagan, the business agent, blamed him for
the walkout.
It was about 4 p. in. when Reagan arrived at the job site and shortly there-
after, according to Gaulding, Melan told Gaulding, "You needn't worry any
more. You are fired, and your check is on the way out here." Gaulding also
testified that Sam Marinovich told Reagan that Gaulding had never been able
to get along with Melan, had had trouble with him since he started, and was a
continual source of trouble from the time he came on the job. Keith, who quit
on learning that Gaulding had been discharged, testified that at sometime during
the work stoppage he heard Simmons tell Gaulding, "Goddam it, you finally got
the job done." 2 It is also clear that there was argument and name-calling be-
tween Melan and Gaulding, but the testimony on the whole presents a confused
' Simmons did not deny that he made substantially this statement but testified that he
was under the impression that news of his discharge had reached Gaulding and the walk-
out was predicated thereon. Sam Marinovich also testified that shortly after the walkout
began some of the employees asked him why Gaulding was being discharged. Gaulding
denied that he had any knowledge of his discharge prior to the time the business agent
came on the job site at or shortly after 4 p. in. and I credit his testimony . I am convinced
that the welders had no knowledge of the discharge at the time they left their jobs and
that Gaulding 's discharge had nothing to do with the work stoppage.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picture both as to sequence and substance of incidents attending the work
stoppage. About the only thing that is clear is that it was attended by much
confusion, that the employees themselves were confused as to the reasons for
the walkout, that there was division among them, and that after the business
agent had visited the site, all of the welders, except Gaulding who was discharged
and Keith who quit, returned to their jobs for the short time remaining on their
work shift.
As to the problem of ventilation, no additional measures were taken by the
Respondent following the work stoppage and no further stoppages occurred.
It would seem clear, therefore, that the condition caused by the smoke was not
of a character nor degree to constitute a hazard or danger ; otherwise, it would
be incredible that the employees' bargaining representative would take no
measures to correct it, or that the men would continue to work while the condi-
tion remained uncorrected. The Respondent's witnesses testified that with the
installation of blowers all had been accomplished that could be accomplished to
clear the air of smoke, and inasmuch as no grievances were filed by or through
the Union, it is a valid inference that the Union agreed that the Respondent had
done all that could reasonably be required of it in the matter. As to Gaulding's
own grievance in the matter of his discharge, the Union refused to process it.
Considering the testimony as a whole, it is clear that the Respondent had
reason to believe that the work stoppage was attributable to Gaulding and, as I
have found, it was attributable to him. Assuming that the ventilation constituted
a problem, as it undoubtedly did, and would have been proper subject matter for
a grievance, as it may have been, the Respondent's contract with the Union set up
grievance procedures and had such procedures been followed in a proper man-
ner no lawful discharge could have been predicated thereon. Had the Union
refused to process such a grievance the employees might well have taken
more direct action and had such action been taken in a proper manner, it might
reasonably have been termed collective activity protected by the Act. But such
protected activity does not encompass a work stoppage lasting the better part of
an afternoon and instituted in the face of a no-strike clause in the existing con-
tract between the Respondent and the employees' bargaining representative. I
am unable to agree with the General Counsel that the concerted action of the
men in leaving their jobs and remaining out for such a length of time is
properly to be distinguished from strike action ; the distinction, thus argued, is in
my opinion without substance. Nor in denying the protection of the Act to such
activities do I see any real threat to the orderly presentation of grievances by em-
ployees either through their bargaining representative, or failing to receive
support in that quarter, directly to management. The Act is designed for its
stabilizing effect on labor relations, not their disruption, and where the bar-
gaining relationship has been established and cemented by a contract, some re-
spect must be paid to the status of the bargaining agent and to the orderly pro-
cedures provided by such a contract for the presentation of grievances. There is
no evidence that prior to the walkout Gaulding attempted to process a grievance
through the Union ; or that there was no course open to him in the matter of
prosecuting a grievance other than to institute a work stoppage. All reasonable
inferences are to the contrary. Further, assuming that in the heat engendered
by the work stoppage, Simmons and/or Melan referred to Gaulding as an agitator
or troublemaker, it does not appear, in the light of the entire picture as disclosed
by the testimony, that such characterizations here raise an inference of unlaw-
ful intent. Such expressions with those experienced in labor relations tend to
become stereotypes of unlawful motive because they are so frequently equated
with legitimate though aggressive organizational activities. It does not follow,
MONART MOTORS COMPANY 797
however, that situations involving union activities do not exist in which such
characterizations have justifiable application. One hearing Gaulding testify
could hardly doubt his sincere belief in the rightness-not to say righteousness-
of his acts, but I am unable to conclude that they were of such character and
executed in such manner as to bring him within the protection of the Act. Ac-
cordingly, I must recommend dismissal of the complaint.
CONCLUSIONS OF LAW
1. International Brotherhood of Boilermakers, Iron Ship Builders and Helpers
of America, Local 92, affiliated with the American Federation of Labor, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. Southwest Welding and Manufacturing Company, a California corporation,
at all times material herein was and now is engaged in commerce within the
meaning of the Act.
3. The Respondent has not engaged in any of the unfair labor practices alleged
in the complaint.
[Recommendations omitted from publication in this volume.]
MONART MOTORS COMPANY (A CORPORATION) and LOCAL 174, AUTO
SALESMEN'S UNION, UNITED OPTICAL & INSTRUMENT WORKERS OF
AMERICA, CIO. Case No. 13-CA-1166. March 20, 19553
Decision and Order
On January 30, 1953, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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. He also found that the Respondent
had not engaged in other unfair labor practices alleged in the com-
plaint and recommended dismissal of those allegations. Thereafter,
the Respondent filed a brief containing exceptions to the Intermediate
Report.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondent's brief containing exceptions, and
the entire record in the case, and hereby adopts the findings, conclu-
i 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 Houston, Styles,
and Peterson].
103 NLRB No. 90.