Studebaker Corp.Download PDFNational Labor Relations Board - Board DecisionsDec 10, 1954110 N.L.R.B. 1307 (N.L.R.B. 1954) Copy Citation STUDEBAKER CORPORATION 1307 STUDEBAKER CORPORATION and ELMER E. KOVACH LOCAL No. 5, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IM- PLEMENT WORKERS OF AMERICA, UAW-CIO and ELMER E. KOVACH. Cases Nos. 13-CA-1563 and 13-CB-9288. December 10, 1954 Decision and Order On June 11, 1954, Trial Examiner Arthur Leff issued his Interme- diate Report in the above-entitled proceeding, finding that the Re- spondents, Studebaker Corporation, hereinafter referred to as the Company, and Local No. 5, United Automobile, Aircraft and Agri- cultural Implement Workers of America, UAW-CIO, hereinafter referred to as the Union, had not engaged in any of the unfair labor practices alleged in the complaint and recommending that the com- plaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Coun- sel and the Respondents filed exceptions to the Intermediate Report and supporting briefs. On November 24, 1954, at Washington, D. C., the Board heard oral argument in which all parties participated. The Board has reviewed the rulings of the Trial Examiner made 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 exceptions and briefs, the oral argument, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner with the follow- ing modifications, additions, and exceptions : 1. We agree with the Trial Examiner that, for the reasons herein- after set forth, the Respondents did not violate the Act by their con- duct relating to the suspensions of the 19 employees involved in this proceeding. In reaching this conclusion, however, we rely only on the ground that, under the circumstances detailed in the Intermediate Report, the Company suspended the 19 employees, who were all union members in good standing, in order to terminate unauthorized work stoppages engaged in by groups of other union employees who refused to work because the 19 employees owned automobiles other than the make produced by their employer; and that, although the majority of the union stewards approved and supported the independent ac- tion of the strikers and the disciplinary policy invoked by the Com- pany, the Union had no policy giving rise to a union obligation concerning the cars its members might or might not buy, and did not, in fact, cause, or attempt to cause, the suspensions or the work stoppages leading to the suspensions.' Accordingly, we conclude that i This determination makes it unnecessary for us to pass upon the validity of the Trial Examiner 's conclusion that unlawful discrimination was not established in this case even if the Union caused the suspensions As this question is not reached here, the Board ex- presses no opinion regarding it, reserving ruling thereon for future determination in the event the question is presented. 110 NLRB No. 214. 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondents, by their conduct with respect to the suspensions, so far as alleged in the complaint or litigated in this proceeding, did not infringe any statutory right protected by the Act? 2. We also find that the preponderance of the evidence does not sustain the additional allegation of the complaint that the Union vio- lated Section 8 (b) (1) (A) by threatening employees with loss of employment for refraining from compliance with an alleged union policy requiring ownership of a Studebaker automobile as a condi- tion of employment. In view of the foregoing, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] 2 The complaint alleged in substance that the Company violated Section 8 (a) (3), and (1) by discharging or suspending 19 named employees because they refused to comply with an alleged union policy as to the ownership of automobiles , and that the Union violated Section 8 ( b) (2) and ( 1) (A) by attempting to cause and causing the Company to dis- criminate against the 19 employees in violation of Section 8 (a) (3) of the Act With respect to the Trial Examiner ' s finding that Section 8 ( a) (1) was not violated, the General Counsel excepted only on the ground that " the [19 complaining ] employees had the right under Section 7 to refrain from joining in union action " [ Emphasis supplied ] As we have found above, there was no union policy or action to which the suspensions may be attributed Intermediate Report STATEMENT OF THE CASE Charges and amended charges having been filed by Elmer E. Kovach against the Respondent Company and the Respondent Union, above -named , in Cases Nos. 13-CA- 1563 and 13-CB-288, respectively , and the two cases having been duly consolidated, the General Counsel issued a complaint alleging that the Respondents had engaged in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The com- plaint, as amended prior to and during the hearing, alleged that the Respondent Company, on various dates between July 2 and September 8, 1953, violated Section 8 (a) (1) and (3), by discharging , laying off, and/or suspending , directly or con- structively , 19 named employees ; ' that the Respondent Union violated Section 8 (b) (1) (A) and 8 (b) (2), by attempting to cause and causing the Respondent Company to discriminate against the named 19 employees in violation of Section 8 (a) (3) of the Act; and that the Respondent Union additionally violated Section 8 (b) (1) (A) by threatening employees with loss of employment for refraining to comply with an alleged union policy requiring ownership of a Studebaker automobile as a condition of employment . The Respondents filed answers denying generally the material allegations of the complaint imputing to them the commission of unfair labor practices. Pursuant to notice , a hearing was held between February 1 and 12, 1954, at South Bend, Indiana, before Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner . The General Counsel and the Respondents were repre- sented at the hearing by counsel . Full opportunity was afforded all parties to examine and cross-examine witnesses , to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and con- clusions of law. During the hearing, a number of motions made by the General Counsel to amend the complaint in various respects were granted without objection. 1 The 19 are Edward S. Engle , Elmer E Kovach , Ernest L. Kingsafer , Alexander E: Orbon , Lyle W. Van Doren, Joseph Febbo , Lloyd Sinimerman , Donald Simmerman, W. H. Tucker, Joseph Solmos , James M. Harrison , Charles W Buwa, Vernon H. Barkman, Isadore Swedarsky , Tony Baldini , Harry 0 Sarabyn , Robert B. Weymon , Emanuel C . Kepler, and John Collins STUDEBAKER CORPORATION 1309 At the conclusion of the hearing a motion was granted to amend the pleadings to conform to the proof as to minor variances . At that time decision was reserved on motions by the Respondent Union to dismiss the complaint in its entirety, or, in the alternative , to dismiss the complaint for insufficiency of proof insofar as it alleged violations with respect to certain named individuals . Such motions are now disposed of by the findings of fact and conclusions of law made below. Fol- lowing the conclusion of the hearing , the General Counsel , on March 16, 1954, moved for an order reopening the record for the purposes of (a) amending the complaint to add the names of two additional individuals claimed to have been, discriminated against by the Company at the instigation of the Union , and (b) to, receive evidence concerning such amendments . The motion to reopen was denied by an order and accompanying written opinion , dated April 7, 1954, which has been filed as part of the record of this proceeding . Briefs were received from the Company on April 16, 1954 , from the Union on April 22, 1954, and from the General Counsel on April 21, 1954. The briefs have been considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Studebaker Corporation , a Delaware corporation , with its principal office and plant at South Bend , Indiana, is engaged in the manufacture of automobiles. During 1952 , the value of raw materials purchased by the Company for use in its business was in excess of $400,000 ,000, of which more than 50 percent was shipped to its place of business at South Bend, Indiana, from points outside the State of Indiana. During the same year the Company's sales of finished products exceeded $500,000,000 in value, of which more than 75 percent was shipped in interstate commerce from its plant in South Bend into and through States of the United States other than the State of Indiana. It is conceded that the Company is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED Local No. 5, United Automobile , Aircraft and Agricultural Implement Workers of America , UAW-CIO, is a labor organization admitting to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. Introduction During the summer of 1953, the Company removed from their jobs a number of its employees who had purchased 1953 automobiles of makes other than Studebaker- The reason assigned was that other employees would not work with them because of their purchase of "off-brand" cars . The employees were advised , however, that they ,vould be restored to their jobs when they "made peace" with their fellow employees- it being made clear that the way to do so was to dispose of their cars of other makes. Some of those who were removed were later restored to their jobs after selling or promising to sell their off-make cars. Others who declined to sell have not worked for the Company since.2 In all, there were some 35 to 45 cases of removal growing out of car situations in the summer of 1953, according to Harry D. Beutlich, the Company's assistant director of industrial relations . Not all of them are covered by the complaint in this proceeding , probably because no more were uncovered by the General Counsel in his prehearing investigation . The complaint names only 19 indi- viduals who are alleged to have been illegally affected . Litigation at the hearing was confined to the cases of the 19 specifically mentioned in the complaint. The names of the 19 (hereinafter called the complainants ), the date shown by the record when each was removed from his job, and the date of his reinstatement, if any, are set forth below: "With regard to the present status of those who were removed but who have not yet been iestored to their jobs , Walter Gundeck , the Company 's industrial relations mana- ger, testified that they are still iegarded by the Company as employees entitled to their pension rights , insurance benefits, and the like-in fact to all incidents of employment except the privilege of working and drawing pay pending the correction of the co ,nditioia that led to their removal. 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Name Date of re-moval i Date of reinstatement Joseph Solmos--------------- --------------------------------- July 2,1953 Without loss of time. Joseph Febbo-------------------------------------------------- Aug 4, 1953 James M Harrison----------------------------------------------- Aug 6,1953 Aug 20, 1953. Lyle W Van Doren----------------------------------------------- Aug 10, 1953 Tony Baldini--------------------------------------------------- W H. Tucker---------------------------------------------------- -----do-------- Aug 11,1953 Harry 0 Sarabyn----------------------------------------------- Aug 18, 1953 Robert B Weymon----------------------------------------------- Aug 19, 1953 Sept 7, 1953. John Collins ------------------------------------------------------- Aug 25,1953 Sept 3, 1953 Ernest L Kmgsafer----------------------------------------------- Aug 26, 1953 Alexander E Orhon----------------------------------------------- Aug 28, 1953 Isadore Swedarsky ------------------------------------------------ Emanuel C Kepler---------------------------------------------- -----do-------- Aug 31, 1953 Charles W. Buwa--------------------------------------------- -- Sept 1. 1953 Donald Simmerman------------------------------------------------ Sept 2,1953 Lloyd Simmerman ------------------------------------------------ -----do------- Jan 7, 1954 Edward S. Engle-------------------------------------------------- ----do------- Sept 3, 19-53 Vernon H. Barkman----------------------------------------------- Sept 3,1953 Sept 4,1953 Elmer E Kovach------------------------------------------------- Sept 8,1953 I Baldini and Van Doren are alleged to have been constructively discharged Donald and Lloyd Simmer- man were first removed on August 18, were returned to their jobs the next day without loss of pay when they promised to sell their off-brand cars, and were then removed again on September 2 after their failure to sell The complaint alleges that as a result of union causation, the Company discharged, laid off, or suspended each of the complainants because he refused to and refrained from complying with a stated policy of the Union requiring ownership of a Stude- baker automobile as a condition of employment. With that the Respondents take issue. They dispute that the Union was responsible for causing the complainants' suspension of employment; and dispute, moreover, that the Union had any policy such as the General Counsel asserts. According to them, the complainants were removed only because they had made themselves personally objectionable to their fellow employees by virtue of their ownership of off-make cars and in some in- stances for other reasons as well-to such a degree as to cause other employees to refuse to work with them. That situation, they say, led the Company in the exer- cise of reasonable business prudence, and in conformity with employment policies it customarily followed in comparable situations, to remove the source of employee irritation so that production might continue unhampered. The facts relating specifically to the case of each complainant, as found from the record evidence, are set forth under separate headings in Appendix A, attached to and made a part of this report. The discussion immediately to follow will concern itself primarily with an analysis of the facts relating to the broad issues of this case, as indicated above, applicable to the cases of all complainants and to the situation generally. It will draw in part upon facts found in the Appendix, but not on all of them. For a full insight into the facts, the Appendix must be read, and it is sug- gested that a good time to do so may be now.3 3 The Appendix makes reference to various union officials whose place in the union hier- archy should be fixed In ascending order of importance they are stewards, 1 for every 50 employees or major fraction thereof in each department, with a minimum of 2 per de- partment shift, elected by their groups ; chief stewards, elected by the group stewards, 1 for each department on each shift; divisional representatives, 1 for each of the 13 divisions in which the Union groups departments, who are elected by direct vote of the men in their divisions, and general officers elected by the entire membership body. Divisional repre- sentatives, along with officers, are members of the executive board and bargaining com- mittee. Grievances are normally handled at the first step by the group steward and immediate supervisor of the employee involved ; at the second, by the chief steward and department foreman, with the group steward also present ; at the third, by the divisional representative and assistant director of industrial relations, with the permissable presence of the stewards below, and at the fourth, by the union negotiating committee and company director of industrial relations STUDEBAKERt. CORPORATION 1311 B. Evidence bearing generally on the issues of union causation and the existence of a union "car policy" The Union is the exclusive bargaining representative of the Company's hourly rated employees. At the time of the incidents here involved there were about 22,500 such employees, distributed over 91 departments, many of which worked 2 shifts and some 3. Although no union shop or other compulsory membership contract has ever been in effect between the Union and the Company, all unit employees in- cluding the complainants were members of the Union. The Company has never had a rule or policy requiring its employees to own or drive Studebaker cars as a condition of their employment. Nor has it ever imposed on its employees any other requirement as to the cars they may or may not drive. The Union has never adopted any rule, regulation, or resolution governing the con- duct of its members in that regard. Nor has it ever announced to its members gen- erally that it has a union policy on that subject. For many years, however, beginning long before the Union was organized, there has been a feeling among Studebaker employees, that one working at Studebaker should drive a Studebaker car. That feeling has been expressed by some as a tra- dition, by others as an unwritten law. It appears to stem not only from a sense of loyalty to the Company and pride in its product, but from a belief that it is in the economic self-interest of the employees to support the company product. Accord- ing to one witness, Beryl Wilson, that feeling is predicated in part upon a belief that employees who purchased cars of other makes were taking bread and butter from the mouths of Studebaker employees. Another witness, Forrest Hanna, vice president of the Union, put the basis for that feeling in these words: "If we don't buy our own product we are building, how do we expect to sell them to other peo- ple." As appears from Hanna's testimony, the "unwritten law" had its limitations- it was considered morally permissible for any employee to buy a used car of a differ- ent make, but "if you are going to buy a new car, then you are going to buy a Studebaker." There is some evidence that in years past, employees on a number of occasions had refused to work with others who had purchased cars of other makes. But it does not clearly appear that, prior to the car incidents that are the subject of this proceeding, any employee was ever removed by the Company from his job or otherwise disciplined for his deviation from the "unwritten law." As can readily be observed by any visitor at the Company's plant, almost all cars-with scattered exceptions-are of Studebaker manufacture .4 That, however, may not be entirely due to tradition. Under an employee purchase plan, the Company allows its em- ployees to purchase its cars at a very substantial discount from the regular retail prices, an arrangement that was of particular advantage to employees in the years immediately following the war when new cars were difficult to obtain. There was apparently little interest in the observance of the tradition during and after World War II. During that period the shortage of cars provided a ready mar- ket for all the cars that Studebaker could produce. With the disappearance of a seller's market, the picture changed. In the early part of 1953, the Company was beset with production problems, and this, coupled with the loss of military contracts and a strike at a major parts supplier, reduced employment materially. Though em- ployment began to go up later in the year, rising to a high point in July and August, it was even then evident to employees that orders were falling off and that a con- stantly increasing number of cars was being produced for stockpiling, a situation that could only lead to an eventual layoff of major proportions, as in fact it did in September. Various rumors began to circulate concerning the Company's financial soundness and its possibilities for continued operation as an independent company. These developments led to increasing employee anxieties and fears over the uncer- tain economic outlook and became principal topics of discussion at union member- ship meetings. In the spring and early summer of 1953, there was considerable discussion among employees-much of it communicated to union representatives-as to what action should be taken with regard to the "off-brand" car situation. The concern of the membership with the problem generally is reflected in a resolution that was adopted at a meeting on May 14, 1953, with regard to the use of non-Studebaker cars by county and municipal agencies. That resolution recited that for the first time since the war the Company's product was on an unrestricted basis, pointed out that the Company was the largest taxpayer and employer in the area, and called upon the county and municipal officials to purchase hometown products. The Union's top officials, however, succeeded in warding off any expression of union position on * During the hearing, the Trial Examiner , with the consent of all parties , was taken on a conducted tour through the plant. 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the subject of employees' purchase of "off-brand " cars. At the June meeting, an employee, Beryl Wilson , offered a motion to require union officers to enforce the "unwritten law." Her motion was ruled out of order by the Union 's president, Louis Horvath.5 The first removal incident involving an off -make car of which we have a record here, occurred on July 2, 1953, and involved Joseph Solmos. As more fully ap- pears from the facts found in his case , as set forth in Appendix A, his removal was precipitated by a petition signed by a group of men in his department who asserted their unwillingness to work with him because of the car he drove. Solmos' was the only case where a petition was signed . The others-with the possible exception of that of Elmer Kovach's-were directly precipitated by work stop- pages or threats of work stoppages by men working either in the department of the complainant against whom the action was directed or in an adjacent depart- ment. After the Solmos incident the next one of which we have a record occurred more than a month later. During the first 2 weeks in August there were four. The bulk occurred in the latter part of August and the first week of September. Following the filing by Kovach of his unfair labor practices charges on Septem- ber 9, 1953, there was a cessation of such activity in the plant. The 19 cases set out in Appendix A occurred in some 17 departments of the plant. In view of the fact that other employees not named in the complaint appear to have been similarly affected , it may be assumed that similar incidents also occurred in additional departments . Even so, only a minor proportion of the departments were touched by such incidents . It affirmatively appears that there were many departments in which no incidents occurred , although there were employees there with late model cars of other makes. It further affirmatively appears that in a number of the departments where action was taken against em- ployees who are complainants in this proceeding , there were additional employees with 1953 cars other than Studebakers who were left undisturbed . In a few of the cases the singling out of certain men may be explained on the ground that they engaged in other irritating acts as well , but not so in the majority of the cases There have been other occasions when men in the Company 's plant have de- clined to work with a fellow employee whom they have found objectionable for one reason or another . In dealing with such situations , as in its general conduct of employee relations , the Company , according to its witnesses , follows neither a policy of appeasement nor one of insistence upon strict adherence to sterile princi- ples or to the terms of its collective -bargaining contract . The Company follows what it calls a problem solving course, whereby it considers the facts of each situa- tion on its own merits , and reaches its decision not on the basis of whether there has been a contract violation by the stoppage , but on the basis of where it considers the equities lie, whether on the side of those who engage in the stoppage, or on the side of him against whom the stoppage is directed . Sincerity of purpose, justice, and the best interest of the Company and all employees are the controlling factors, according to the Company 's witnesses , and to these contract considerations and pressures are made subordinate. The Company provided for the record a number of illustrations of work stoppages in 1953 , where after investigation and a weighing of the equities it had removed from a department the employee against whom the stoppage was directed , and had allowed the strikers to escape unpunished notwithstanding the no-strike provision of the contract . They are set out in the footnote.6 6 There is some confusion in the record as to the date of the Wilson motion The tran- script refers to the date as June 1952, but according to my recollection , my hearing notes, and the understanding of the parties at the heating , as revealed by other portions of the record , the date she actually gave was June 1953 The transcript is hereby corrected accordingly Wilson was called as a s fitness for the Union Other union witnesses sought ,to place Wilson's proffered resolution at a meeting on August 13, 1953 , at which a union steward , Prezell Williams-as will later more fully appear-addressed himself to the car situation as it existed at that time However , from the context of Wilson 's and Williams' testimony , I am satisfied , and I find, that the meeting at which Wilson offered her reso- lution and the meeting at which Williams spoke were separate and distinct 91. The men in a department refused to work with an employee because lie was un- clean After investigation , the man was removed from the department, turned over to the hospital, and told not to report back to the department until he had put himself in a sanitary condition 2 The nien in a department refused to work with an employee who had engaged in a fight The employee was removed from the department, sent home for the balance of the day, and the next day sent to another department where there would be no friction . 3 The men - in a department threatened a work stoppage because of the STUDEBAKER CORPORATION 1313 When the first stoppage over a 1953 "off-brand" car occurred in early July, Harry D. Beutlich, the Company's assistant director of industrial relations, who was responsible for handling all third step grievance meetings , discussed the prob- lem with his superior, Walter Gundeck, the Company's director of industrial rela- tions. Gundeck informed Beutlich that although the Company normally, as a matter of policy, did not attempt to dictate to the employees what cars they could purchase, the Company should not risk a stoppage that might shut down the entire plant just because an individual had become objectionable to his fellow employees. Gundeck instructed Beutlich that in such a situation the individual should be re- moved from his job until he had made peace with his fellow employees, but that he should not be dismissed. The record reflects that in appraising the equities of the situation Gundeck and Beutlich were of the view that the employees en- gaging in such a stoppage were acting out of a sense of loyalty to the Company and with a "sincerity of purpose," and that justice was on their side rather than on the side of the employee who had shown his disloyalty to the Company's product by the purchase he had made. It appears from Hanna's testimony that about that time Hanna had an "unofficial" talk with Gundeck about how such situations were to be handled, but his testimony is not entirely clear as to just what was said.? Once having adopted its policy in the initial case involving a work stoppage over a 1953 "off-brand" car, the Company continued to apply the same policy in all like cases that thereafter arose. As appears from the record as a whole, application of that policy presupposed the existence of a situation where there was an actual re- fusal by some employees to work with another because he had purchased a car of another make. Whenever such a situation arose-except where, as will hereinafter more fully appear, a union representative intervened to put an end to the stoppage- the Company followed a uniform procedure. Immediately upon learning of a refusal to work, the department foreman removed the employee against whom the refusal was directed and sent him to the industrial relations office with instructions to report to Beutlich, or, if the employee was on the night shift, to Beutlich's counterpart on the night shift, Everly. The divisional representative of the removed employee, and usually his steward or chief steward, or both, were present during the employee's interview with Beutlich.8 In those instances where the refusal to work occurred in another department or group, the divisional representative and chief steward or steward of the other department or group would also attend. Beutlich made no secret of where his sympathies lay, in most instances, he was critical of the em- ployee's conduct, expressing the view that the purchase of a car of another make was incompatible with the employee's loyalty to the Company. At the same time he also stressed that the Company had no policy requiring its employees to purchase the Company's product, and made it clear that the men were being removed only because their fellow employees would not work with them and in order to avoid disruption of production. Beutlich normally concluded the interview by instructing the re- moved employee to turn in his badge, and advising him that he could return when he had made his peace with his fellow employees. The union representatives for the most part remained silent during the interview, expressing no position one way lack of cooperation of a fellow employee. The employee was removed from that depart- ment and sent to another that same day 4 The men in a department threatened a work stoppage because of the carelessness of a fellow employee. To avoid a stoppage, the em- ployee was sent to another part of the plant. 5 The men in a department refused to work with an employee who had a picture of Stalin on his tool box and whom they thought to be a Communist The ernployee, after investigation, was removed from the department for psychiatric treatment, and following such treatment was sent to another section of the plant where he could work alone 7In a case arising about the same time involving a 1952 car, the Company appears to have taken a different position. Gundeck testified about another work stoppage in an "off- brand" car situation in early July when he communicated with Vice-President Hanna and requested him to do something about it Shortly thereafter Hanna reported to Gundeck that the stoppage had been taken care of. Concerning the same incident, Hanna testified that lie had gone out to the department with Divisional Representative Anderson, that lie had determined upon investigation that the employee involved was driving a 1952 car he had purchased before coming to the Company, and that on the basis of such information he had persuaded the men to return to work. 8 It is standard practice at the Company's plant to have present in the handling of any case involving the status of an individual employee the union representatives who normally appear at that step of a grievance matter 338207-55-vol. 110-84 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or the other. In no instance were the men told by Beutlich that the Company was effectuating a union policy or that the men were being removed at the insistence of the Union. So much for the policy of the Company. What of the position of the Union during this period? It has already been noted that the Union never adopted a formal rule, regulation, or resolution regulating the conduct of its members with regard to the purchase of cars of other makes. It has also been noted that when a resolution on that subject was proposed at the June meeting, it was shunted aside. With the outbreak of car incidents in the summer of 1953, the question of what position, if any, the Union should adopt came up for consideration at meetings of the Union's executive committee. As appears from the testimony of Divisional Representa- tive George Hinkle, the consensus of opinion at least among divisional representa- tives was that those who bought "off-brand" cars were "no good so and so's." How- ever, no formal action was taken, nor was any official union policy adopted by the executive committee. President Horvath testified that when the subject was brought up he told the members of the executive committee "that it was their problem to take care of it, keep it in the departments where it belongs; that it is a personal issue; [that] each case was different, and it was best to leave it with the people who actually knew them intimately.. . In effect, then, Horvath's instruction was that each situation should be handled as a grievance matter in the department where it arose, with the Union's position to be shaped largely by the sentiments of the particular employees who were concerned with it, and by the equities involved in that particular situation rather than on the basis of any overall union policy. That instruction was not inconsistent with traditional practices of the Union. As appears from a study made of the Company's union-management relations, introduced into evidence by the Company without objection, "It has not been unusual for a union di- visional representative (general steward) to come into a grievance situation in a shop and determine the union position in arguing the case with management by taking a vote on the spot of the desires of the members involved." 9 There is evidence that the car situation was discussed at stewards' meetings held in 2 of the Union's 13 divisions. There is no evidence that there were similar dis- cussions at stewards' meetings in the other divisions, and it must be assumed that there were none Thus, Anthony Langer, a witness for the Union and a steward in one of the de- partments for which Louis Nagy was divisional representative, testified, and it is found, that at a stewards' meeting in that division held on August 6, Nagy, after advising the stewards that there had been a number of work stoppages in the plant in "off-brand" car situations, instructed them that if men sat down in their departments in such a situation, they were immediately to notify their foreman who would ar- range to remove the "off-brand" owner from the department. Edward Engle, one of the complainants in this proceeding, and a steward at that time in another depart- ment in Nagy's division, testified that at several stewards' meetings held in late Au- gust and early September, various stewards raised the question of what they should do about new "off-brand" cars on company parking lots. Nagy replied, according to Engle, that the stewards should get the license plate numbers, names, and clock num- bers of owners of "off-brand" cars on the parking lots and report that information to him.to Engle did not claim that Nagy ever instructed the stewards themselves to provoke incidents or to initiate action looking toward the removal of "off-brand" car owners." In the foundry, contained in the division of which John Ballatore is the repre- sentative, the "off-brand" car situation was not only made a subject of discussion, but of action as well. It appears that there were a substantial number of men in the foundry with "off-brand" cars, more than in any other section of the plant. The question of what, if anything, was to be done about that situation was brought up at a meeting of the foundry stewards in August. Ballatore suggested that the stewards find out the attitude of the men in their groups and report back to the 6 Harbison and Dubin, Patterns of Union-Management Relations (Science Research As- sociates, Chicago), p. 123 10 Engle's testimony in that respect, although denied by Nagy and other union witnesses, is credited 11 Nagy's request for license numbers may be considered in conjunction with the testimony of another divisional representative, George Hinkle, who stated that during this period he was often handed the names and license numbers of "off-brand" car owners against whom employees wanted action taken According to Hinkle, he would accept the information and stuff it in his pocket, without any actual intention of following up the matter. "There is a little politics involved there," Hinkle explained STUDEBAKER CORPORATION 1315 stewards' meeting. About August 11, another stewards' meeting was held in the foundry. Some of the stewards reported that the men in their groups did not want to work with those who had purchased "off-brand" cars; others reported that their people had no such objection; the former were apparently in the majority. Ballatore favored the taking of action. Although declaring that the Union had no policy requiring employees to purchase Studebaker cars, he emphasized that the Company's sales were falling off, and stated his belief that it would help the Company and in turn the employees if the men who worked for the Company supported its product. Ballatore pointed out that employees in other divisions had refused to work with men who had purchased "off-brand" cars. A motion was made to place the body of stewards in the foundry on record as favoring a refusal to work with any employees who had purchased 1953 cars of another make. The motion was carried by a majority vote. Shortly thereafter one of the stewards in the foundry distributed to others a form of notice, typed on ordinary paper,12 and asked them to post it on their bulletin boards. The notice read as follows: August 11, 1953. The Steward Body in the Foundry has voted to refuse to work with any employee who has purchased a 1953 model car, other than Studebaker. You have ten ( 10) days in which to dispose of your 1953 car other than a Studebaker. Chief Steward______________________________ Steward ----------------------------------- The notice was posted by some of the stewards , not by others . One steward, Elmer Carr, a witness for the General Counsel , testified that he put the notice handed him in his pocket and did not post it because he did not agree with it. Another witness for the General Counsel , Arthur Stoner , at that time a chief steward in one of the foundry departments , testified that when he saw the notice on the bulletin board he removed it because he had not placed it there and did not consider himself bound by the action taken at the meeting. When Ballatore 's attention was directed to the notice by one employee Steward Prezell Williams ,13 who asked whether it was an official union bulletin, Ballatore said it was not official and he knew nothing about it. But when Williams commented that he did not intend to sell the 1953 "off-brand" car he owned, Ballatore said that the men would not work with him if he did not sell. Another employee, Helen Sisti , 14 who owned a 1953 Nash, called President Horvath of the Union to complain about the notice. Horvath told her to ignore it, according to her testimony , stating that the Union had nothing to do with it. Horvath called Ballatore, expressed his disapproval , and asked him to investigate to determine who was responsible for its posting. It appears that the notices remained posted for but a short time , perhaps less than a day, before they were removed. So far as appears no employee with an off -make car in the foundry had any action taken against him, although there were a substantial number in that category. On August 13, 1953, shortly after the posting of the notices in the foundry, the Union held a general membership meeting. There were present that night, a sub- stantial number of foundry employees who had been told that the car situation would come up for discussion . During the meeting, Prezell Williams, a foundry steward who owned a 1953 Dodge he was anxious to retain , took the floor to ask for a clarification of the Union's position on the subject . Williams' inquiry provoked heated discussion by those who favored the pursuit by the Union of a course of action against owners of late model cars of other makes , and by those who were opposed . Concerning that meeting , the Union 's minutes simply record , "There was considerable discussion on employees buying other makes of cars than Stude- bakers. There was no official action taken." Williams, who appeared as a witness for the General Counsel, testified that Horvath spoke at length on the subject; that he could not recall exactly what Horvath said "because Mr. Horvath has a certain way of explaining things," but "after listening to Mr. Horvath talk [he] felt 100 percent better personally . Williams went on to state that he left the union hall that night with the feeling "that the Company and the Union weren't pushing [a program of action on "off-brand" cars] and it was a lot of agitation." Must responsibility be attributed to the Union for the work stoppages and other incidents that led the Company to suspend the complainants ? The General Counsel Official union notices are ordinarily carried on the Union 's letterhead is Williams was called as a witness by the General Counsel. 14 Sisti, now on layoff status , was called by the Union 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contends that it must , both on the theory that the Union failed to disavow employee work stoppages and other conduct directed toward that end, and on the theory that the Union, through positive acts of stewards and other representatives, par- ticipated in, controlled , and adopted as its own the actions that caused the supensions. Reserving for later the drawing of conclusions , we turn now to a consideration of the evidence , not already adverted to, bearing specifically on that question. Under its collective-bargaining agreement , the Union is prohibited from engaging or permitting its members to engage in any strikes or work stoppages until the grievance procedure provided for in the contract has been completely exhausted. Though the Union is exempted from responsibility for unauthorized strikes, it must as a condition precedent if it would claim that exemption , comply with certain disavowal provisions of the contract . The agreement provides in substance that even though the Union has not caused a stoppage , it must take immediate steps to end it, by, among other things , notifying all members that the work stoppage was unauthorized , and directing those engaging in the stoppage to return to work. The record reflects in cases of other stoppages , which the Union considered unauthorized and which it disapproved , that the Union utilized its maximum efforts to bring the stoppage to a halt and invariably succeeded . However, in none of the cases involving stoppages or threatened stoppages directed against complainants in this proceeding did the Union take the position either with the Company or the men that the strike action was unauthorized. On the contrary, the record shows affirmatively that responsible union representatives on the scene accepted the action of the men and made no effort to induce the employees to refrain from such conduct, at least not until the objective of the stoppage had been accomplished by the removal of the "off-brand" car owner from his job. The record amply demonstrates, moreover, that union representatives not only had effective power to control the situation in car cases , but in fact exercised that power in situations where they happened to, disapprove of action by employees. Thus, the record reflects a number of car incidents , not involving complainants in this case , where union representatives successfully intervened to end the stoppage and to induce the employees to work with the "off-brand" owner, though he did not dispose of his car. In substantially every one of the instances where that was done, the facts where they are known show that the car involved was either a 1952 model, or, if a 1953 model, that there existed other special circumstances that in the eyes of the union representative appeared to make inapplicable or to excuse a deviation from the "unwritten law." 15 The record shows no instance in which a union representative holding the position of chief steward or up failed to end a work stoppage in a car situation where he attempted to do so. The extent , if any, to which union stewards and other representatives participated in or influenced the incidents leading to the removal of complainants from their jobs can best be determined from an examination of the facts of each particular case as set out in Appendix A . There is no consistency or uniformity in pattern . In some of the cases , the complainants received their first indication that men did not want to work with them from the men themselves in advance of action ; in more cases, however, such notice, if given at all in advance of action , was first brought home to them by stewards . In eight of the cases , there does not appear to have been any intervention by a steward prior to the actual stoppage or other incident that directly precipitated the complainant 's removal . In each of the others there is evidence that a steward or chief steward contacted the complainant in advance . But the charac- ter of the contact varies. In some of the cases the steward appears to have done no more than inquire as to the truth of the report that the complainant was driving an "off brand" car. The inquiry in others was coupled with an explanation that men were complaining and that there might be trouble . In several instances , those mak- ing the inquiry disclosed by their comments that they personally were amicably dis- posed toward the complainants ; in others , the contrary . Several of the complainants were specifically warned in advance that employees would refuse to work with them if they did not dispose of their "off -brand" cars ; and two of them-Engle and Kovach-were given ultimatums with specific time periods specified . is One factor is common to substantially all cases, and that is the existence of objections or com- plaints directed against the complainants by at least some of the employees in the ^ For example, where the "off-brand" car had actually been purchased by an employee's father or husband who worked elsewhere, or had been purchased by an employee before he came to work for the Company, or while on leave, or had been purchased when required for extraordinary purposes and at a time when no car was obtainable from the Compan3• is The warnings where given spoke not of union action, but of the reaction of the men who were complaining STUDEBAKER CORPORATION 1317 departments or groups where the work stoppages or other incidents occurred. There is no direct evidence in any of the cases that union officials instigated employees so to object or complain. Nor is there any-except in the case of Engle who himself asked for such action-to show that union stewards or other officials ever specifically called upon or directed employees in their groups to engage in or to threaten work stoppages. In some of the cases, the record shows that stewards either participated personally in the work stoppages or acted as spokesmen for the men who were re- fusing to work; in a substantial number of them, however, no such steward partici- pation is shown. Reference has already been made to the presence of divisional representatives and lesser union officials at the interview each complainant had with Beutlich or Everly before his badge was removed. The record leaves little doubt that the union repre- sentatives appeared at this interview as supporters of those refusing to work rather than as defenders of those against whom the refusal to work was directed. Cer- tainly the presence of the representatives of groups other than the one to which the complainant belonged, where the stoppage or threatened stoppage was by employees of another group, would be consistent with no other conclusion. The procedure followed appears to have been regarded by all as one in which there was up for review a grievance by employees against the particular individual who had offended them by his purchase of an "off-brand" car. Though the record shows that the union representatives never expressly requested the Company to take disciplinary action against the employee with whom men were refusing to work, it is apparent that they were aware that badge removal would follow as a matter of course under the Company's policy, at least if they did not object; yet in none of the cases involved in, this proceeding did the union representatives voice disapproval. Their position is perhaps best understood in the words of Chief Steward Zook who, testifying on Kovach's case, stated, "After all we represent the men in the department. If they want us to do something that is what we do." It seems clear that by that stage at least the Company recognized that the action of the men refusing to work had be- -come union-supported action to be thereafter dealt with as a union matter. Thus, as appears in a number of the cases, Beutlich left it to the union representatives to make decisions as to whether complainants should be permitted to return to work upon their promise to dispose of their "off-brand" car; as to whether a subsequent transfer of the car was bona fide; and as to whether their badges should be returned. In some of the cases where union representatives were called upon to make such decisions, it appears that they first consulted the desires of the men they represented; in others it appears that they made the decisions on their own. C. Analysis and conclusions 1 This case has been mistakenly viewed by some as providing a test on the question ,of whether employees have a right as consumers to refrain from supporting their employer's product without impairment to their job status. The Act, of course, confers no such right in the abstract, and whatever one's view on that may be as a matter of business or trade union morality is entirely beside the point. The only issues within the compass of the Act that are here for decision are these: Did the Company in violation of Section 8 (a) (3) unlawfully discriminate against the com- plainants within the meaning of that section, and did the Union in violation of Sec- tion 8 (b) (2) cause the Company to engage in a Section 8 (a) (3) violation? Did the Respondents by their conduct with regard to the complainants restrain and coerce employees in the exercise of the specific rights guaranteed them under Section 7 of the Act, the Company in violation of Section 8 (a) (1), and the Union in vio- lation of Section 8 (b) (1) (A)? 2 The record in my opinion does not substantially support a finding that the Union had a "stated policy," as alleged in the complaint, imposing upon employees, either as an obligation of membership or as a condition of their employment, a require- ment that they purchase only Studebaker cars or that they refrain from purchasing cars of other makes. It is undisputed that neither the Union's membership, nor its officers, nor any constitutional body of the Union ever adopted a rule, regulation, or resolution to that effect. Numerous officers and representatives of the Union testified that the Union had no such regulatory policy even on an informal basis. Similarly, the Company's witnesses testified that the Union had not advised the Company of any such policy. Except in the foundry, no announcement was ever made to employees of such a union policy. In the foundry the notices posted were 1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not on official union forms, were repudiated by the Union's president, and were quickly torn down. The vote of the stewards in that division did not purport to represent effectuation of a general union policy, but merely to express the majority sentiment of employees in that division, or at least of their stewards.17 No action was taken against foundry employees with "off-brand" cars, although it is undis- puted that there were many in that category. Significantly, none of the complain- ants testified that he had even been told by any union or company official of the existence of a union policy to that effect. Where stewards spoke at all to complain- ants on the subject, they spoke in terms of the attitude of other employees, not of the Union. At the interviews in Beutlich's and Everly's office it was never stated that a union policy was being enforced. I am unable to agree with the General Counsel that the occurrence of the car incidents is explainable only on the basis of union fiat, or is not explainable at all. The explanation provided by the Respondents-the existence of a long-standing tradition antedating the Union, coupled with mounting employee tensions-is I think, a reasonable one. The fact that the incidents occurred in substantial num- ber does not necessarily imply union direction; it is equally open to the explana- tion that it resulted from employee contagion induced in part by the receptive response of the Company. Though there are circumstances in the record that may appear to support the General Counsel, more are at odds with a finding that the Union had a defined policy imposing upon members the requirements of which the complaint speaks. Among them are the fact that incidents occurred in but relatively few departments; the complete lack of action in many departments where employees were known to have "off-brand" cars; the fact that in some of the de- partments where action was taken against a complainant others with "off-brand" cars were left undisturbed; the expressed opposition of stewards in certain depart- ments to any such action; and the absence of evidence in many cases of active steward participation in the incidents, let alone of instigation. On all the record, I am unpersuaded that the circumstantial evidence upon which the General Counsel relies, balanced against other circumstantial evidence pointing oppositely, is suffi- ciently substantial to warrant rejection of the direct testimony set out above. I conclude that the Union had no rule, regulation, or policy giving rise to a union obligation concerning the cars its members might or might not purchase. But while the record does not support a finding of a "stated" union policy or membership requirement on the subject, neither does it support the Respondents' claim that the Union pursued a completely "hands-off" policy with regard to car situations even after they arose. Divisional representatives were in effect instructed to consider car situations as if they were grievance matters in the particular de- partments where they arose, and, as in the case of other grievances, to shape the Union's position on each particular case on the special circumstances involved as well as on the desires of the employees who were directly concerned with it. The divisional representatives, and sometimes lesser union officials, did attempt, suc- cessfully, to curb employee eruptions in situations where they believed employees were going too far to extend the "unwritten law" beyond its traditional scope, or where special hardship cases were concerned. But they made no such attempt in situations involving a clear deviation from the "unwritten law." Their general reaction to such situations appears to have been that the employees who were expressing their resentment against violation of the tradition had a bona fide grievance that warranted union approval and support. In that respect, however, the Union's attitude was substantially no different from that of the Company, and, at least in those cases where stoppages had already occurred, conformed to company policy. The Company, too, considered that in such situations equity was on the side of the protesting employees who, respecting tradition, were acting with a "sincerity of purpose" by their show of loyalty to the Company, rather than on the side of the disloyal employee against whom the protest was directed. As found above, the Company, guided substantially by that consideration, early in July adopted a policy specifically with regard to the car situations. Under it, "off-brand" car owners were to be removed from their jobs as soon as it was learned that fellow employees were refusing to work with them for that reason, and were to be barred from returning until they had corrected the con- ditions which had made them persona non grata with their fellow workers. That policy was followed by the Company through the period with which we are con- 17 Moreover, the timing of the vote, 6 weeks after the first incident, along with the fact that the stewards thought it necessary to sound out the feelings of their members before expressing a position in the matter, are circumstances that refute rather than support a finding of a fixed and defined union policy. STUDEBAKER CORPORATION 1319 cerned , and was specifically applied in the cases of the complainants . Undoubtedly, the Company 's policy was acquiesced in by the Union ; but, so far as this record discloses , it was established by the Company, independently of the Union and without the latter's instigation . As to each complainant in this proceeding it is clear that at the time of his removal the Company was satisfied that there had been a sufficient showing of a refusal to work to call for application of its own inde- pendently established removal policy. What has just been said not only bears importantly on the issue of employer motivation ; it also raises a grave question as to whether it can be found with regard to a substantial number of the complainants that the Union caused their suspension. On this aspect of the case , the General Counsel 's position is that the Union was responsible for creating the conditions-work stoppages and threatened work stop- pages-without which the Company would not have acted . To establish such re- sponsibility , the General Counsel claims that: ( 1) Circumstantial evidence supports a finding that the work stoppages were actually instigated by union stewards and other officials; ( 2) union responsibility should be inferred from the mass action of employees even without proof of actual union instigation ; and (3 ) in any event the Union must be found to have ratified and to have adopted as its own action of the employees , because of the failure of union officials to disavow the work stop- pages where they occurred and their acquiescence , tacit or otherwise , in the Com- pany's removal action . The General Counsel places main reliance on the ratification claim-and for a reason. The instigation claim is clearly unsupported by sub- stantial evidence in the cases of some of the individual complainants involved in this proceeding , and in others the sufficiency of such evidence is at best doubtful. The sometimes stated principle , to the effect that union responsibility under certain factual circumstances may be inferred from the simultaneous mass action of mem- bers in support of a union 's position , 1e I think inapplicable here, if only for the reason that there is no evidence of mass action in the sense the principle contem- plates-the stoppages in this case having been sporadic in character over a 2-month period , and having usually involved small groups of employees in a relatively few scattered departments of the plant . That , then , leaves the ratification claim. As to all the complainants against whom work stoppages occurred there is ample record evidence to show that the Union failed to disavow the stoppages and to order the men to return to work, as it is contractually required to do where unauthorized strikes occur. The record also amply shows as to all the complainants that the Union at least tacitly acquiesced in the action taken against them. It is with regard to those cases where nothing else appears but union inaction and acquiescence that I express doubt as to whether enough has been shown to support a finding of union causation . The question here is not one of union responsibility in the abstract , but whether the union caused the Company to act in a manner differently than it would have of its own independent volition . As found above, application by the Company of its own policy called for the immediate removal and suspension of employees with "off-brand" cars against whom a work stoppage occurred . The Company did not in any of the cases call on the Union to disavow the work stoppage ; there is no evidence that it expected or desired the Union to do so; and on this record the contrary may be assumed . The fact that the Company had a contractual responsibility to pursuade wildcat strikers to return to work is beside the point; for this is not a case where contractual responsibility is in issue. In these circumstances , I think it highly questionable whether mere union inaction, after the conditions had already arisen to invoke company action pursuant to the Company's own removal policy, is alone enough to support a finding of union causation-and this though the Union 's inaction is coupled with the further show- ing that after such conditions arose the Union approved , as did the Company, the objective of the work stoppage as one in support of a meritorious grievance. However, I find it unnecessary to determine that issue , nor to decide in which of the particular cases, where more than union inaction and subsequent acquiescence have been shown , a finding of union causation has been substantially supported. For I am satisfied on this record that even if causation is found established no viola- tion of the Act has been made out. For purposes of further discussion , I shall assume , although I do not decide , that union causation has been sufficiently estab- lished in all cases. '8 See, e g U. S v Railroad Trainmen, 27 LRRM 2308 ( No. D, I11. ) ; Los Angeles Build- ing Construction Trades Council , 105 NLRB 868 Contra, U. S . V. United Mine Workers, 87 F. Supp 179 ( D. C., 1950). 1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 Under Section 8 (b) (2) it is not made an unfair labor practice for a union to cause an employer to discriminate unless the employer discrimination is predicated upon nonmembership in the union or is otherwise "in violation of subsection r81 (a) (3) " The principles governing the proper interpretation and application of Section 8 (a) (3) were recently spelled out by the Supreme Court in N. L. R B. v. Radio Officers' Union of the Commercial Telegraphers Union, AFL, 347 U. S. 17, in outline as follows. Section 8 (a) (3) does not outlaw discrimination in employ- ment as such; "only such discrimination as encourages or discourages membership in a labor organization is proscribed." The phrase, "membership in a labor organi- zation" is not narrowly confined to enrollment on union membership books, but where encouragement in violation of Section 8 (a) (3) is alleged, includes encour- agement of compliance with obligations or supposed obligations of membership, as well as of participation in union activities. The employer's motive in discriminat- ing is always relevant, for if the discrimination is to be illegal it must be aimed at a proscribed objective. That does not mean, however, that specific proof of intent to discourage or encourage is indispensable in all cases. For if the employer's conduct is of a kind that "inherently encourages or discourages union membership," it is open to the Board to draw an inference of illegality from such conduct alone under "the common law rule that a man is held to intend the forseeable conse- quences of his action." Similarly, proof of employees' actual response "is not required where encouragement or discouragement can be reasonably inferred from the nature of the discrimination." But, as explained in the concurring opinion of Mr. Justice Frankfurter,19 any inference drawn from an employer's alleged dis- criminatory acts is a rebuttable one, it being open for an employer to show by additional facts that the discrimination was "so patently referable to other rand lawful] considerations as to preclude a finding of a violation." As further explained in the concurring opinion: The Board's task is to weigh everything before it, including those inferences which, with its specialized experience it believes can be fairly drawn. On the+ basis of this process, it must determine whether the alleged discriminatory actr of the employer were such that he should have reasonably anticipated that they would encourage or discourage union membership. The instant case must be judged in the light of those principles. 4 Since there can be no Section 8 (b) (2) violation unless that which is caused or attempted is a violation of Section 8 (a) (3), and no Section 8 (b) (1) (A) viola- tion unless the employee right claimed to have been trenched upon is also one safe- guarded from employer interference by Section 8 (a) (1), we shall consider first whether, independent of union causation, the Company's conduct was such as alone to be illegal under Section 8 (a) (3) and 8 (a) (1), and, if not, then whether what was lawful without union causation was made unlawful with it. As found above, the Company suspended the complainants from employment because they had become persona non grata to fellow employees who refused to work with them for the reason that they had purchased cars of makes other than Studebaker. The requirement imposed upon the complainants as a condition to their return-the disposal of their "off-brand" cars-was not per se an unlawful discriminatory condition of employment within the meaning of Section 8 (a) (3); nor was it per se an infringement of a statutorily guaranteed right. The Act does not forbid an employer either alone or by agreement with his employees' represent- ative to condition employment on support of his product. Of course, conduct that is legal standing alone may be illegal if it is motivated by a purpose the Act con- demns. It becomes necessary therefore to extend inquiry beyond what was done, to determine why it was done. In this case, the force that moved the Company to sus- pend the complainants was the refusal of fellow employees to work with the com- plainants because they had deviated from the "unwritten law." And so the question, at least on the Section 8 (a) (3) aspects becomes this: On the basis of the underlying reason for the suspension action, is it reasonably to be concluded that the Company's alleged discriminatory action was of a character so inherently related to encourage- in Joined in by Mr. Justice Burton and Mr Justice Minton who also subscribed to the opinion of the majority of the Court. The views expressed in the concurring opinion and in the Court' s opinion are stated to be "not in disagreement." STUDEBAKER CORPORATION 1321 ment of union membership as to require the inference that the Company intended that result? T think not. The complainants' suspension had nothing to do with their member- ship status as such, or with any impairment of that status, actual or potential. It was neither referable to any union obligation nor any other aspect of union fealty. As found above, the Union did not impose as an obligation of membership that those purchasing new cars purchase only Studebakers or none at all, and had no stated policy on that subject. The "unwritten law" to that effect, deviation from which led to the complainants' loss of employment, was not an outgrowth of union action, but stemmed from an historic employee tradition, antedating the Union, and hav- ing as its basic frame of reference employee loyalty to the Company and its product. It was unconcerned with any aspect of employee adherence to the Union or its activities. What, then of the 8 (a) (1) aspect9 Did the Company, in view of the reasons underlying its action, violate the complainants' Section 7 rights? The complainants' self-organizational rights were of course not involved. Neither was assistance to the Union, for, as found above, there was no union rule or policy to be promoted. That leaves only the question as to whether the refusals to work, that stemmed from the employees' traditional feeling of resentment against those among them who failed to support the company product, gave rise to a protected right that was infringed by the complainants' suspension from employment. I hold that there was no such in- fringement. It would be an anomalous rule of law that says an employer may nor- milly condition employment upon employee support of his product without violating Section 8 (a) (1), but that he violates that section if there is in existence among his employees a feeling or tradition that employees disloyal to their employer's product are unfit for employment. To be sure, the expression of that feeling in the form of concerted refusals to work with the complainants unless they complied with the tradition was a concerted employee activity. And, contrary to the Com- pany's position , in my opinion it was one for mutual aid and protection within the statutory meaning, because it was predicated in part on a belief that the complainants' protested conduct was detrimental to the economic interests of the employees. But the failure of the complainants to participate in the concerted action that was directed against their ownership of "off-brand" cars cannot fairly be viewed as the reason for their discharge. I think it would be a distortion to equate their ownership of "off- brand" cars, which was the actual reason for their discharge, with their exercise of a protected right to refrain from the employee concerted activity. A distinction must be drawn between the concerted activity itself consisting of the banding to- gether, the common demand, and the joint action in pursuit of a labor objective, on the one hand, and, on the other, the labor objective or employment condition that is sought to be achieved by that activity. The former falls within the scope of the right to refrain; the latter is outside its purview. In this case, the employment con- dition to which exception was taken and for the correction of which the concerted activity was pursued was the complainants' continuance on their jobs while owning "off-brand" cars. The complainants were not discharged because they opposed the concerted action, they were discharged to satisfy the objective of that action. The Company's compliance with the condition that was the goal of that activity-a condition not itself illegal under the Act-and its suspension of the complainants to bring about such compliance cannot in my opinion properly be regarded as infringing upon the right to refrain that is within the protection of Section 7. There is evidence in this case of a number of other situations where the Company removed from their jobs employees whom fellow workers found objectionable for a variety of reasons and with whom they therefore refused to work-in one instance, because the removed employee was thought unclean and unsafe, in another, because the employee's poor work performance affected the group incentive earnings of his fellows, in a third, because the employee used foul language, and in the fourth, because the employee was suspected of being a member of the Communist party. Can it be said that the employees so removed acquired a Section 7 protection simply because those with whom they worked shared a common feeling that such employees were undesirable coworkers, and expressed that feeling in concerted action to correct by their removal the condition thought undesirable? I think not. The flavor is undoubtedly different, but on principle I can perceive no basis for distinction between the examples given and the situation in the instant case. In the absence of facts showing unlawful discriminatory motivation based upon union membership or nonmembership, or some aspect of it, or the invasion of a spe- cifically protected employee right, the courts and the Board have held that an em- ployer does not violate Section 8 (a) (1) or (3) by dismissing an employee with whom other employees have refused to work because he has become persona non 1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grata with them. See e. g., N. L. R. B. v. Wytheville Knitting Mills, 175 F. 2d 238 (C. A. 3); N. L. R. B. v. I. Spiewak, 179 F. 2d 695 (C. A. 3); Queens-Premier- Williams Fur Dressing Corp., 92 NLRB 42.20 5 And so-having concluded that it would not have been violative of Section 8 (a) (3) or (1) for the Company, acting alone and independently of union causation, to have suspended the complainants for the reason that underlay the refusals of fellow employees to work with them-we reach the next question: Does it make a difference that the Union supported the positions taken by the employees who refused to work with the complainants, and, thus, under the assumption we make here, become legally responsible for causing the Company to take the action it did? The General Counsel says that it does. He takes the position in this case that an employer may not lawfully discharge an employee at the request of a union for any reason other than the employee's failure to conform to the terms of a valid union- security provision to the extent authorized by the provisions of Section 8 (a) (3). He argues that when a union for any other reason causes an employer to take action affecting the employee's hire or tenure of employment, the employer violates Section 8 (a) (3), and the Union, consequently, 8 (b) (2). He insists that that is so, even though the Union's reasons are wholly unrelated to considerations of union mem- bership, obligations of membership, union benefit or union fealty, and he says it matters not that, without the element of union causation, the Company's action stand- ing alone could not be held to be discriminatory within the meaning of Section 8 (a) (3), or violative of employee rights guaranteed by Section 7.21 The Respondents of course take an opposite position. The issue presented on this phase of the case has never been squarely decided by the Board 22 It is one of far-reaching implica- tions extending beyond the confines of this particular case. If the principle proposed by the General Counsel is upheld and given full scope, it might mean, for example, that if a union insists that seniority be followed in a layoff, and causes an employer to discharge an employee junior in service whom the employer would otherwise have retained, the employer would run afoul of Section 8 (a) (3), and the union of 8 (b) (2).23 So, too, it would mean that it would be an 8 (a) (3) violation for an employer to discharge the unsafe employee, the inefficient employee, the badly be- haved employee, or the Communist in the examples given above, if fellow em- ployees engage in a work stoppage to protest their presence on the job and the union supports that stoppage as a meritorious one, or in connection with it engages in other conduct from which responsibility for causing the discharge may be imputed to the union. To support what has been styled the "per se" theory of liability, the General Counsel relies principally upon legislative history and dicta to be found in a number of previously decided cases, more so than on the language of the Act itself. Certainly the language of the Act is inconsistent with the "per se" position ad- vanced by the General Counsel. Section 8 (b) (2), it must be reemphasized, does not make it illegal for a union simply to cause an employer "to discriminate against 20 In the Spiewak case, which arose before the 1947 amendments to the Act, the de- mand for the dismissal was made by a labor organization. The court thought that cir- cumstance unimportant, stating (at p 700), "The fact that notification of the employees' position came through the Association [labor organization] is of no real consequence " In the Queens-Premser-lVilliams case, no finding is made of union causation, but the facts found show that it was the union's shop committee that acted as spokesmen for the men who objected to the conduct of the dismissed employee and who refused to work with him for that reason 2' The position taken by the General Counsel's representative in this case is seemingly inconsistent with positions officially taken by the General Counsel in previously published administrative rulings. See Administrative Decisions, Cases Nos 71 and 72 (March 30, 1951) upholding Regional Directors' refusals to issue complaints against employers who were caused by labor organizations to discharge employees, in one case because the enr ployee had engaged in past misconduct unrelated to his obligations of membership, and in the other case , because the employee had engaged in alleged communistic activities. Though in each case the employee involved had been expelled from the Union, the General Counsel's ruling was predicated on the theory that considerations unrelated to union membership provided the true basis for the discharge actions 22 In the recently decided Roadway Express, Inc., case, 108 NLRB 894, footnote 8, the Board expressly declared it an open one. 23 But see Local Union No. 6281, United Mine Workers of America, 100 NLRB 392, where a contrary result was reached STUDEBAKER CORPORATION 1323 an employee ," but only "to discriminate against an employee in violation of sub- -section ( a) (3)," or against one to whom union membership has been denied or terminated upon some ground other than his failure ( in a union shop situation) to pay dues and initiation fees. Section 8 (a) (3) is keyed to union membership, and, as pointed out in the Radio Officers' Union case , supra, outlaws "only such discrimination as encourages or discourages membership in a labor organization." The General Counsel's assertion , that the only discrimination permitted under the statute is for nonpayment of dues or initiation fees under a valid union -security clause, is correct only if the term "discrimination" is read in the context in which it is used in the proviso to Section 8 (a) (3), namely , "discrimination against an employee for nonmembership in a labor organization ." Before the proviso can come into play at all , there must be discrimination of that type . Where discrimina- tion of that kind is shown , the proviso exempts it from the reach of the statute if it falls within the specifically excepted categories , but not otherwise . But where, as found here, the discrimination is wholly unrelated to any aspect of encouragement ,or discouragement of union membership , it is wholly immaterial that the conduct is not covered by the specific exceptions stated in the Section 8 ( a) (3) proviso, for then there can be no violation of Section 8 (a) (3) to begin with . The same is true of Section 8 (b) (2). That section is aimed at preventing a labor organiza- tion from causing or attempting to cause an employer unlawfully to discriminate on the basis of union membership within the broad meaning of that term as stated in the Radio Officers' Union case. But if that which is caused or attempted cannot be violative of Section 8 (a) (3) because encouragement or discouragement of union membership is not involved , it cannot be violative of Section 8 (b) (2) either, even though it is outside the specific exceptions of the proviso . 24 The argu- ment of the General Counsel , that though employer discrimination is not of a kind that otherwise would be "in violation of Section 8 (a) (3)," it becomes so if caused by a union , and that the union must therefore be held not merely to have caused the employer "to discriminate" but to have caused him "to discriminate in violation of Section 8 (a) (3)," appears to me a bootstrap argument , and one, more- over, that is wholly unwarranted by any reasonable construction of the statutory language. It is of course an elementary rule of statutory construction that legislative history may not be resorted to for the purpose of varying the terms of a statute , the meaning of which is clear and unambiguous on its face . In any event , the legislative his- tory upon which the General Counsel relies does not persuasively support the con- struction upon which he now insists . It is true, of course , that the committee re- ports and debates on the 1947 amendments to the Act reveal that Congress was con- cerned with the problem of union control over the "right to work," and that it amended Section 8 ( 3) of the Wagner Act and enacted Section 8 ( b) (2) of the present Act principally with the objective of restricting the power of unions in that regard. But Congress appears to have considered that problem basically in the frame of reference of closed shop or other compulsory union membership agree- ments. It was assumed in the reports and debates that the root of the evil lay in the power of a union , after expelling an employee from membership or denying him membership in the first instance , to deprive that employee of employment by force of compulsory union membership contractual requirements . The only adequate remedy for these conditions , it was thought , would be to require that, henceforth , unions insisting upon the all-union shop must be open to all employees willing to pay initiation fees and dues, and to permit the use of the compulsory membership device for what was considered to be its one legitimate purpose- elimination of "free riders"-while outlawing its use for all other purposes. To implement that remedial policy , Congress eliminated the closed shop proviso as it had appeared in Section 8 (3) of the Wagner Act, and substituted in its stead the present union -shop provisos to Section 8 (a) (3), setting forth the only conditions under which discrimination on the basis of nonmembership would be allowable. Except for the tightening of restrictions on compulsory union membership privileges, however , there is nothing in the legislative history to indicate authoritatively that Congress intended to enlarge on the scope of Section 8 (3) of the Wagner Act so 24 The dissent of Board Member Murdock in Anniston Yarn Mills, Inc, 103 NLRB 1495, on which the General Counsel places considerable stress, is not, as I read it, inconsistent with the views expressed above. It is evident that Board Member Murdock was there using "discrimination" as a word of art to indicate discrimination of the kind that encourages or discourages union membership. As appears from the dissent the basis of the discrim- ination against the employee in that case was "her nonmembership in the Union and her failure to participate in a strike." 1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as make illegal now employer discrimination of a type that was not illegal before- that is, discrimination which was not aimed at the encouragement or discouragement of union membership or some related aspect of it. To further implement the remedial policy, Section 8 (b) (2) was devised to create a sanction against unions which might seek to overreach in the future such union- shop privileges as they were permitted to retain. Section 8 (b) (2) in H. R. 3020 as it passed the Senate made it an unfair labor practice for a union to persuade or attempt to persuade an employer to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to pay dues and initiation fees uniformly required as a condition of acquiring of retaining mem- bership, or because he engaged in activity designed to secure a determination pursuant to Section 9 (c) (1) (A) at a time when a question concerning rep- resentation may appropriately be raised. From the phrasing of Section 8 (b) (2), as well as from its legislative history, it is clear that Section 8 (b) (2) in the form it passed the Senate was intended in a union-shop situation to impose liability upon a union which attempted by means of contractual sanctions to bring about employer discrimination upon grounds other than those specifically permitted by the Section 8 (a) (3) proviso with which it was correlated. The phrase, "in violation of subsection (a) (3)", now appearing in 8 (b) (2), was added in the Conference bill, at the same time the Rutland Court 25 clause was elim- inated and "cause" was substituted for "persuade." The House Conference Report explains Section 8 (b) (2) as modified in conference, as follows: 26 Section 8 (b) (2) is expanded so as to prohibit all attempts by a labor organi- zation or its agents to cause an employer to discriminate against an employee in violation of Section 8 (a) (3). The latter section, as heretofore explained, prohibits an employer from discriminating against an employee by reason of his membership or nonmembership in a labor organization,27 except to the extent he obligates himself to do so under the terms of a permitted union shop or maintenance of membership contract. . A provision which was contained in the Senate amendment in Section 8 (b) (2), designed to prevent an employer from discriminating against an employee covered by a union shop agreement, who has been expelled from the union for activities on behalf of another representative, is omitted since there is nothing in the conference bill which permits an employer to discriminate against an employee who has been expelled for this reason. Senator Taft, in his analysis to the Senate of the Section 8 (b) (2) changes made in the Conference bill, stated: 28 Paragraph (2), which makes it an unfair labor practice for a labor organiza- tion to cause or attempt to cause an employer to discriminate against employees, departs from the text in the corresponding paragraph in the Senate amendment in two respects. The original Senate amendment used the words "to persuade or attempt to persuade." The House conferees objected on the ground that it seemed inconsistent with the provisions guaranteeing all parties freedom of expression. The conferees clarified this language so that it reads "to cause or attempt to cause." The House managers also directed the attention of the Senate conferees to the fact that while the Senate bill forbade unions to dis- criminate against employees with respect to whom membership in a labor organ- ization has been denied on some ground other than failure to pay dues and initiation fees, it did not expressly forbid a union to attempt to bring about the discharge of an employee who is not covered by a valid compulsory member- ship contract. Of course a discharge under such circumstances has been re- peatedly held to be a violation of subsection 8 (3) of the present act by the Board, and since it was not the intent of the Senate to make unlawful coercion by a labor organization against employees covered by compulsory membership agreements and yet to tolerate attempts at discrimination against employees not so covered, the conferees agreed to the adoption of the phrase "in violation of subsection 8 (3)." 25 Rutland Court Owners, Inc., 44 NLRB 587. See, Colgate-Palmolive-Peet Co. v. N L. R B , 338 U S. 355. 28 Report No. 510, on H. R. 3020, p. 14 27 Emphasis supplied. 25 93 Cong. Rec. 6443 STUDEBAKER CORPORATION 1325 The House Conference Report cannot possibly be construed as supporting the General Counsel's per se theory, for it clearly ties in 8 (b) (2) causation with 8 (a) (3) discrimination related to union membership. However, it is on Senator Taft's analysis, particularly the last sentence of it, that the General Counsel principally relies to establish his position that any discharge caused by a union except on the grounds specifically permitted by the proviso, is illegal-regardless of whether or not it has an unlawfully discriminatory basis within the meaning of Section 8 (a) (3). I am unable to agree that Senator Taft's statement must be so interpreted, or even that such is the more reasonable interpretation. The word discrimination as used in the last sentence, especially when considered in the context of the sentence that precedes it, appears to be used as a word of art, referring not to any discrimi- nation but only to such discrimination related to the encouragement or discourage- ment of union membership as is proscribed by Section 8 (a) (3). This view is con- firmed by Senator Taft's explanation: "Of course a discharge under such circum- stances has been repeatedly held to be a violation of subsection 8 (3)." That statement scarcely indicates an intent to enlarge on the scope of Section 8 (3) as previously interpreted. Rather it indicates a purpose simply to make unions liable for causing or attempting an employer to engage in conduct of a kind traditionally regarded as violative of Section 8 (3) under the Wagner Act. I have been unable to discover any case decided under the Wagner Act where an employer was held responsible under Section 8 (3) for a discharge caused by a union, in the absence of a showing that the Company's reason, or the reason of the Union adopted by the Company, was related to union membership or the violation of employee protected rights a9 It is earnestly urged by the General Counsel that his per se theory is the only one compatible with the spirit of the Act, for without it, he says, a union could readily circumvent the statutory restrictions by eliminating the preliminary step of expul- sion from the union, and making a direct request for the employee's discharge. I do not think such a result follows. Whether or not an employee has been formally expelled from union membership, it would still be necessary to scrutinize the facts to determine the underlying basis for the union's discharge demand. If it is found to rest upon the employee's failure to comply with an obligation or supposed obli- gation of membership, or his lack of fealty to the union, or his exercise of a pro- tected right, or some other unlawful consideration, the discharge or attempt to cause it would be illegal, whether or not preceded by expulsion from the union.30 While agreeing that none of the cases squarely rule on the question presented here, the General Counsel refers to a number of Board cases which, he says, con- tain dicta supporting his per se theory. Thus, he refers to Union Starch & Refining Company, 87 NLRB 779, enfd. 186 F. 2d 1008 (C. A. 7) as authority for the prop- osition that a union may under no circumstances cause an employer to discharge an employee except for nonpayment of dues or initiation fees under a valid union-shop contract. But that case involved discharges for nonmembership and the language to which he refers must be read in that context. Such discrimination is, of course, expressly forbidden by Section 8 (a) (3). He also refers to language in Air Prod- ucts, Incorporated, 91 NLRB 1381, at 1383, American Pipe and Steel Corporation, 93 NLRB 54, at 56, and Mundet Cork Corporation and Insulation Contractors of Southern California, Inc, 96 NLRB 1143, at 1145, to the effect that an employer's acceptance of the determination 8f a labor organization as to who shall be permitted to work for him is violative of Section 8 (a) (3) where no lawful contractural ob- ligation for such action exists. But the language to which he adverts was unneces- sary to decision in any of these cases, for in each of them there was an independ- 20 The General Counsel cites Graham Ship Repair Co., 63 NLRB 842, Albert Love En- terprises, et at , 66 NLRB 416, 422; The Iron Fireman Manufacturing Company, 69 NLRB 19; Colonie Fibre Company, Inc, 69 NLRB 589, 71 NLRB 354, enfd 163 F 2d 65 (C A 2) ; and Baker & Company, Inc., 68 NLRB 830 None of these cases are apposite, for in each of them the basis of the union's request was the nonmembership of the discharged em- ployees in the union 30 To illustrate : The debates on the union-shop provision refer to 3 cases, considered particularly oppressive, where employees were expelled from a union and barred from jobs under closed shop contracts-Cecil B De Mille, because he refused to make a financial contribution to a union sponsored cause in which he did not believe , 2 war veterans who refused to buy raffle tickets raffled off by the union leadership in the face of a union reso- lution requiring them to do so, and Edmonson because he ran against John L Lewis for union office (93 Cong Rec 4135, 4432 ) In each of these the discharges would never- theless be illegal as predicated upon noncompliance with membership obligations or want of union fealty 1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent basis for a finding of illegality. Thus, in Air Products the employer acquiesced im the discharges which the union representatives stated were for "activities against the union or harmful to the union"; in American Pipe the employee was dismissed for failure to obtain a union "work order," the Board attributing the loss of employ- ment to the union's desire to enforce an obligation of membership; and in Mundet- Cork the employee was dismissed at the union's request because of his nonmem- ship in the union, although there was no valid union-security agreement in effect. In the Air Products case which was the forerunner of the others, the Board was par- ticularly careful to note that its decison rested not alone on the fact that the em- ployer permitted the union to arrogate to itself the company's control over employ- ment, but on the union's utilization of control to accomplish discharges which were- clearly discriminatory within the meaning of the Act. The courts of appeals in a number of cases have rejected the notion that mere arrogation to a union of a com- pany's control over employment constitutes a per se violation of the Act, absent evidence of unlawful discrimination by the union.31 As noted above, the Board has, expressly refrained from committing itself to the proposition that Section 8 (a) (3) is violated, where, as here, a union requests a discharge for reasons unrelated to even supposed obligations of membership, and the employer adopts that reason for a discharge not otherwise illegal. Roadway Express, Inc., supra. The American Pipe case also contains the statement, to which the General Counsel points, that the employer there, by yielding to the union's demand for the removal of the employee, "perforce strengthened the position of the [union] and forcibly demonstrated to the employees that membership in, as well as adherence to the rules of, that organization was extremely desirable." Somewhat similar language is to, be found in other Board cases.32 In all such cases, however, there was an inde- pendent basis for finding unlawful discrimination, the action taken having been predicated upon the failure of the removed employee to comply with an obligation, of union membership or else upon conduct on his part that was looked upon as dis- loyal to his union. In all such cases the employees discriminated against were at the time members of the union, and, as I read these cases, the language adverted to^ was inserted, not for the purpose of establishing the finding of illegal discrimina- tion, which is made to rest on other grounds, but for the purpose of demonstrating why union membership may be encouraged even in a situation where the employee discriminated against is already a union member. Nor do I read the Supreme Court's opinion in Radio Officers' Union, supra, as enunciating a rule of law that any action taken by an employee in derogation of- an employee's employment status, if caused by a labor organization, is per se vio- lative of the Act, regardless of its character or the motive for it. The General Counsel points to the Court's dictum, 347 U. S. 17, at p. 52: "Since encouragement of union membership is obviously a natural and foreseeable consequence of any employer discrimination at the request of a union, those employers [of the affected" employees in Radio Officers and Teamsters cases] must be presumed to have in- tended such encouragement." But that dictum may not properly be considered in the abstract; it must be considered in the setting of the entire paragraph in which it appears as well as in the context of the opinion as a whole. So considered, I think it clear that the results reached by the Court did not rest on the quoted dictum, but rested rather on the findings, found supported by the specific facts in the Radio, Officers and Teamsters cases, that the purposes of the unions in causing the dis- crimination were to enforce compliance with union membership obligations or sup- posed membership obligations, and, thus-by inference drawn from the natural and foreseeable consequences of the employers' conduct that in effect adopted the unions' proposals-that the intent of the employers in effecting the discrimination was to encourage compliance with such union obligations, and, hence, to encourage union membership within the meaning of that term as interpreted by the Court. Stated differently, the predicate for the conclusion that the employers' action was of a kind' that encouraged union membership was the unlawfully discriminatory purposes of the union in seeking such action. And the dictum quoted-as I interpret it in the context of the entire opinion-is simply a confirmatory explanation as to why it was reasonable for the Board to infer that the employers intended the encouragement of union membership that would naturally and foreseeably flow from that particular 91 N. L. R. B. v Swinerton 6 Walberg , 202 F. 2d 511 , at 514 (C A 9) ; N. L. R. B v. F. H McGraw and Co , 206 F. 2d 635 , 640 (C A 6 ) ; Eichleay Corporation v. N. L R. B , 206 F. 2d 799 , 803 (C. A. 3). 12 See e g, Radio O filcers' Union, 93 NLRB 1523 , 1545 ; Local 155, New York Knit goods Workers Union, ILGWU, AFL, 107 NLRB 1629. STUDEBAKER CORPORATION 1327 action taken at the unions' behest . The instant case is of course distinguishable in that there is lacking here the unlawfully discriminatory predicate for the employer's action. I There may be situations of union-instigated employer discrimination where un- lawful encouragement may be inferred from the circumstance alone that the employer's action was such as to display the union's power and control over the employment status. Perhaps such a situation would be one where all that appears is union instigation and employer action without credible explanation as to the- reason for it, in which event it may be reasonable to presume that the union would not have invoked the sanction except to enforce compliance with a membership obligation or adherence to the union in some other respect . But there is no need in this case to explore all the circumstances under which such a principle may justifiably be applied . The only question presented here is whether on this record it is reasonably to be concluded that the Company's action with regard to the complainants was such as to encourage union membership . Though such an in- ference might be drawn to begin with from a finding of union instigation, that inference , as the Radio Officers' Union case makes clear, is not a conclusive one in any event , but is rebuttable by other evidence showing that the alleged discrimi- natory action was referable to lawful action wholly unrelated to considerations of union membership , fealty, or the like. The factual findings made in this case clearly negate any inference that the Company's suspension of the complainants, though caused by the Union, was due either to default on their part in the perform- ance of a union obligation or to some other want of union fealty. The record as a whole shows, instead, that the Company's action was patently referable to other considerations , unrelated to any aspect of union membership or union fealty, and within the Company's allowable freedom of action . In these circumstances, I find no reasonable basis for drawing an ultimate inference or conclusion that the Company's conduct complained of was such as to encourage union membership. For the reasons stated above, I find that the General Counsel has not sustained the allegations of the complaint that the Company violated Section 8 ( a) (1) and (3) by the suspension of the complainants . I further find that the Union did not violate Section 8 (b) .(1) (A) or (2) in connection with such suspensions. D. Alleged independent 8 (b) (1) (A) The complaintant alleges that the Union, through its agents , threatened employees with loss of employment for failure to comply with a stated union policy requiring ownership of a Studebaker automobile as a condition of employment . It has been found above that the Union had no such stated policy. It has further been found above that the Company's employees had no right protected by the Act to refrain from owning a Studebaker car or to own a car of some other make. In view of the circumstances , it is unnecessary to consider whether statements shown by this record to have been made by various stewards to employees as to the action men might take if they did not dispose of their "off-brand" cars were in the nature of predictions or threats of economic reprisal for which the Union was responsible. In either event, no finding would be warranted that 8 (b) (1) -(A) was violated. The General Counsel's brief refers to a number of additional incidents, stated to be supported by record evidence , that are claimed to constitute conduct by the Union violative of Section 8 (b) (1) (A). Included are the following: (a) A statement by Divisional Representative Nagy to employee Engle that he had better not talk to Kovach, the Charging Party, about the case; ( b) a statement by Chief Steward Godair to employee Collins advising him not to file a charge , and Godair's interrogation of Collins concerning his charge after he filed it ; and (c ) statements attributed to Divisional Representative Nagy while addressing a group of employees during the course of the hearing to the effect that if the complainants were rein- stated he would not work with them, and that Engle, a witness and one of the complainants , would not be working for the Company after the case ended. None of these incidents are covered by the allegations of the complaint; the General Counsel at the hearing did not move to amend the complaint to include them; and they were not in fact litigated as issues in this proceeding . Under the circumstances and without passing on whether the claimed incidents are supported by substantial evidence , and, if so, whether they would constitute violations of Section 8 (b) (1) (A), I hold that they may not properly be considered in this case to establish an independent violation of Section 8 (b) (1) (A). [Recommendations omitted from publication.] 1328 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD Appendix A Evidence Relating to Individual Complainants 1. Joseph Solmos Solmos worked in department 168. About the end of June some of the men in his'department asked him if he had bought a 1953 Plymouth. When he told them he had, one of them said , "Well, we will get you out of this department for it." About July 2, Chief Steward Nemeth told him the men had signed a petition stating they would not work with him because of his Plymouth, and that he would have to see Harry D. Beutlich , the Company 's assistant director of industrial relations. Foreman Harry Solmos, his brother , gave him a pass to Beutlich's office. Nemeth and the Union 's divisional representative , Robert Hagenbush , were at Beutlich's office when he arrived . Referring to the petition with 53 names, Beutlich told him the Company could not afford to have a work stoppage on account of one man. When Solmos asked Beutlich what he should do about it, Beutlich replied that he would have to get rid of his Plymouth within 24 hours. But Nemeth pointed out that there would be no work on the following Monday and Tuesday because of the 4th of July holiday , and suggested that he be given until the following Wednesday. Beutlich accepted Nemeth's suggestion . He informed Solmos that if by Wednesday he brought in a notarized statement that he had sold his car he could return to work. Before leaving , Nemeth asked Beutlich to caution Solmos to make a bona fide sale of the car , and specifically not to sell it to a relative or to anyone in the department. Solmos sold his car within the time allowed and brought Nemeth a certificate evidencing the sale. As appears from Solmos' testimony , "Nemeth told the boys, and I went right back to work." Solmos lost no working time. 2. Joseph Febbo Febbo worked in department 286. Before the car incident related below, Febbo had had some difficulty with his fellow employees who thought him greedy about overtime work. On one occasion in June the men in his department had refused to work with him because of his failure to comply with an arrangement between the Company and the Union for the equitable distribution of overtime . On that occasion Febbo had been sent home and relieved of overtime at least for that day. Febbo purchased a 1953 Buick Riviera on July 31, and drove it to work the following Monday . Nothing was said to him that day, but when he arrived at work the next morning, August 4, he found a large cardboard sign hanging over his workplace , stating in substance , "Febbo buys a 1953 Buick on our overtime." Steward Snyder asked Febbo whether the report was true that he purchased a Buick. Febbo told Snyder it was none of his business . Snyder left, stating that he would be back. He returned about a half hour later with Steward Dudlick, and told Febbo he would have to go to Beutlich 's office because the men were refusing to work with him. Snyder first approached Febbo shortly before the shift was to commence work that morning . During the half hour or so intervening between Snyder's first and second talks with Febbo, the line on which Febbo worked was completely shut down with men milling about. After Febbo left to go to Beutlich's office the men resumed their work operations. At Beutlich 's office, Snyder reported that Febbo was the one who had bought a 1953 Buick . Beutlich told Febbo that he had a right to spend his money as he pleased. But , added Beutlich , it was bad policy to work at Studebaker and drive a car of another make, for that might give Febbo's neighbors an unfavorable im- pression of the Studebaker product. Beutlich asked Febbo if he wanted to sell his Buick. Febbo said, "No." Beutlich also asked Febbo whether he was not ashamed to drive a Buick among Studebaker employees. Febbo replied that he was not, that he had not stolen the car. Turning to the stewards , Beutlich asked them what should be done . One of them suggested that Febbo should be given 2 weeks to sell his Buick. Beutlich told Febbo that the Company could not allow one man to shut down production , and asked Febbo for his badge . Without his badge, Febbo could not enter the plant to work. Febbo did not sell his Buick . About 2 weeks after he was removed, he visited Beutlich to ask whether he might not return to -work in another department. Beut- lich replied , "No. It would be the same thing." He told Febbo that he could re- turn as soon as he had sold his car and made peace with his fellow employees; that in the meantime he would have to remain like a man without a country-the latter reference being to the fact that Febbo was not being discharged in a final sense, but STUDEBAKER CORPORATION 1329 was merely being removed until he had met the condition imposed on him. Some- where along the line, Beutlich also suggested to Febbo that he could leave with a clean record if he resigned . Febbo told Beutlich that he would not sell his car. He has not worked for the Company since. On one occasion following his removal Febbo visited the union offices to see what could be done about his situation. He was then told that the Union could do nothing for him until he sold his car. 3. James M. Harrison Harrison worked on the assembly line in department 292. Prior to June he had owned a 1952 Studebaker , and on a number of occasions had made derogatory re- marks to fellow employees about that car. In June Harrison purchased a 1953 Buick . There were several other employees in the department who also owned late model automobiles other than Studebaker . A number of employees asked Group Steward Charles Smith what they should do about men who drove "off -brand" cars. Smith declined to express a position . Some of the men in the department complained specifically to Chief Steward William E. Treathaway about Harrison and the car he was driving . Toward the end of July. Treathaway called Smith to the office to ask him whether it was true that Harrison was driving a 1953 Buick . Although Treath- away cautioned Smith not to mention their conversation to anyone , Smith , who was apparently friendly with Harrison , reported to Harrison that Treathaway had brought up the subject , told him that there were complaints on the line about the car he was driving, and expressed the belief that there would be "trouble " in the form of a work stoppage if he did not dispose of his car. On August 5, Treathaway asked Smith to bring Harrison to the office. When they arrived , Treathaway asked Harrison whether he was driving a 1953 Buick, stat- ing that men in his group were complaining and wanted to know. ' Admitting that he did have a Buick , Harrison asked Treathaway whether anyone had caused trouble. Treathaway replied, "I cannot tell you now , maybe they will though ." Treathaway asked what Harrison planned to do and Harrison replied, "Nothing." Treathaway reported to the men who had made inquiry what Harrison had said. The next morning, August 6 , while Stewards Treathaway and Smith were attend- ing a stewards' meeting on another floor , one of the employees, not a union official, shut down the assembly line by pushing a control button . When the foreman in- quired as to the reason for the stoppage , he was told that the men would not work with Harrison because he was driving a Buick . The foreman thereupon removed Harrison from the line. He stated he could not allow one man to cause a work stoppage and directed Harrison to go to Beutlich's office. Work resumed when Har- rison left the line. While the stoppage was in progress , the foreman made no effort to start the line or to direct the men back to work . Smith and Treathaway returned from the stewards ' meeting after the line was down but before Harrison was removed . Smith, who was personally opposed to the action taken , asked the men to go back to work, but they "laughed" at him according to his testimony . Chief Steward Treathaway did not join in Smith's request . "Why should I?" he testified . But he did tell the men to return after Harrison was removed. The two stewards and the Union's divisional representative , Frank Nemeth, were present at Harrison 's interview with Beutlich . In response to Beutlich 's inquiry as to what was wrong , Nemeth stated that Harrison had bought a new car of another make and the men would not work with him. Beutlich gave Harrison a lecture on how it was bad advertising for Studebaker employees to drive cars of other makes. Since other employees were refusing to work with him, Beutlich said he would re- quire Harrison to turn in his badge . After leaving Beutlich 's office, Harrison asked Treathaway and Nemeth what he could do to regain his job . They answered that he would have to "make it right" with the men by selling his Buick and putting in an order for a new Studebaker. About . 2 weeks later Harrison sold his Buick. Be so advised Beutlich. Beutlich told him that before he could return to work he would have to get Nemeth's ap- IOn this point there is a substantial conflict. According to Harrison , Treatliaway stated that "some committee in the Union wants to know." Both Treathaway and Smith denied that any reference was made to a union committee . While I have reservations about Treathaway 's reliability as a witness , Smith impressed me as a particularly fair and forth- right witness . Considering all the surrounding circumstances , I think it unlikely that Treathaway made the particular remark Harrison attributed to him, and find on this point that Harrison was mistaken in his recollection. 338207-55-vol. 110-85 1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proval . Harrison went to the union hall and showed Nemeth the papers proving he had sold his Buick . Nemeth then called Beutlich and arranged with him for the return of Harrison 's badge. Harrison returned to work on August 20. He has worked since without incident. There were other employees in Harrison's department who owned late model cars other than Studebakers . So far as appears no action was taken against them .2 4. Lyle W. Van Doren Van Doren , who worked in the body assembly line in department 290-260, pur- chased a 1953 Buick in the middle of July. No complaints were directed to him by any employee concerning the car he was driving . However, on August 10, the line on which he was working was shut down for a period of 3 or 4 minutes as a result of action taken by a group of men at one end of the building , who, as Van Doren was later told, had taken the position that they would not work with anyone who had bought an "off-brand" car. The line foreman removed Van Doren from the line and sent him along with Van Doren's steward to Beutlich's office, where they were joined by Divisional Representative Nemeth. Beutlich told Van Doren he was a good advertiser among his neighbors for General Motors, but what was good for General Motors was not good for Studebaker. Beutlich went on to say that the Com- pany had no policy requiring its employees to buy Studebakers, but that it could not allow one employee to bring about a shutdown of the assembly line. He would not therefore allow Van Doren to return to work until Van Doren had restored him- self to the good graces of his fellow employees by arranging for the disposal of his Buick. In the meantime Van Doren would have to surrender his badge. The steward suggested giving Van Doren a 3-day period within which to dispose of his car, allowing him to return to work in the meantime. Van Doren, however, elected to take time off at once so that he might endeavor to find a purchaser for his Buick. About 2 days later, Van Doren came to Beutlich and told him that he had decided not to get rid of his Buick, as he would have to take too much of a loss on a resale. Beutlich did not offer to return Van Doren's badge. without which, as Van Doren understood and as was the fact, Van Doren could not return to work. Though Van Doren did not himself offer to quit, it was suggested by a department clerk that it would be good for his record should be desire to resume employment on a subsequent date if he signed a paper the clerk had prepared. Van Doren agreed to do so. The paper recited that Van Doren wished to terminate his employment with the Com- pany to accept employment elsewhere. At that time Van Doren did not in fact have other employment, although he obtained a job elsewhere shortly thereafter. He has not worked for the Company since. Van Doren's case is alleged in the amended complaint both as a direct and as a constructive discharge.3 5. Tony Baldini Baldini 's case is alleged as one of constructive discharge . Baldini was employed on the final body assembly line in department 290. He purchased a Buick in April. There was some talk about it, if not at once, at least before he finally left. Several of his fellow workers told him that some of the men at the other end of the depart- ment knew he was driving another make of car and that "eventually there would be repercussions." On August 10, Chief Steward Hochtel approached him and asked him what kind of a car he was driving. When Baldini told him, Hochtel asked if he wanted to sell it. He did not , Baldini replied . Hochtel warned Baldini that a number of em- ployees in the department were about to "raise hell" because of the car he was driving, and that he would have to sell the car if he wanted to hold his job. Baldini testified that he knew there had been talk about his ownership of the Buick and that he knew Hochtel was telling the truth when he said the men were planning to sit down on him. About an hour after his discussion with Hochtel, Baldini went to his foreman, told him he anticipated trouble because of his car, and asked for permission to leave in advance of the trouble so that he might get the matter straightened out. 2 The findings concerning Harrison are based upon a synthesis of testimony, to the ex- tent credited, of Harrison, Treathaway, Nemeth, and Smith. 3 The findings concerning Van Doren are based upon Van Doren's credited testimony, as supplemented by Beutlich's general testimony Nemeth also testified on this case, but his testimony is considered unreliable , and is not accepted insofar as it is inconsistent with that of Van Doren. STUDEBAKER CORPORATION 1331 The foreman , who appeared relieved , according to Baldini , said he would have had to ask Baldini to leave anyway because "they were going to create a work stoppage." Baldini left the department before any actual work stoppage took place. Several days later , Baldini visited the union hall where he spoke to Neil Moorlag, the Union 's financial secretary . Baldini asked Moorlag what he could do about his car situation . Moorlag offered Baldini no encouragement . He indicated he thought little of Baldini 's explanation that he had bought another make of car because he was unable to obtain at that time the particular model of Studebaker he desired . He stated that Baldini should have been satisfied with any Studebaker model he could get, as Studebaker was his bread and butter . Moorlag told Baldini that he would have to sell his Buick in order to get his job back. About 2 weeks later , Baldini called on Beutlich . Beutlich told him the Company had no policy requiring employees to drive a Studebaker but there was a moral obligation on his part to do so . He also told Baldini , as he told all others, that the Company could not afford to have a work stoppage on account of one man in a situation of this sort . Beutlich requested Baldini to surrender his badge , and Baldini did so . At that time , Baldini asked Beutlich for a leave of absence for a year, but Beutlich denied his request , stating that leaves were not being allowed at that time. He told Baldini , however, that he could have 2 weeks within which to dis- pose of his car , expressing the belief that such action would reinstate him with his fellow employees. On October 5, Baldini returned to Beutlich , told him that he had decided not to sell his car , added that he did not intend to quit either, and asked what would happen. Beutlich told him that he could now have a leave of absence if he wanted it. On the written leave application which Baldini signed , he stated as the reason for the leave, "I am going to sell life insurance." 4 6. W. H. Tucker Tucker worked on the second shift on the heavy repair line in department 158. He bought a 1953 Buick on July 25, making no secret of that fact .5 When he told his group steward , Keith Gibson , of his purchase , Gibson expressed his personal view that Tucker had a right to purchase any car he chose. Gibson testified that later a number of men in the department told him they disapproved of Tucker's purchase and did not want to work with him for that reason . 6 Gibson told the men who complained that they had no proper grievance that he could press on their behalf, but that he would nevertheless take up the matter with Chief Steward Shide and obtain his views . Gibson testified that he thereafter consulted Shide, and that Shide expressed agreement with his own views. On August 11, Assistant Foreman Joseph Delee removed Tucker from his job, instructing him to report to the department office. Delee told Tucker he was having trouble with the men because Tucker was driving a Buick. There is a conflict as to whether Tucker 's removal was preceded by an actual work stoppage . Tucker testified there was none. A number of witnesses called by the Respondents testified that there had been a work stoppage. As to the details and duration of the claimed work stoppage there are substantial variances in the testimony of the Respondents ' witnesses. On the one pole there is Delee's testimony. Delee conceded that the men were at work when Tucker was removed. However, according to Delee, earlier that evening during the 6 o'clock break period, employees in the department had bunched into groups and had announced their refusal to work with Tucker because of the car he was driving. He had then asked the men to return to work promising to see what he could do to "get this thing settled ." Although the men had complied with his request , they had not actually got started until about 2 minutes after the end of the break period , and then only after notifying him that if Tucker were not off the job by supper time they would stop again . On the other 'The findings concerning Balduu are based in the main upon his credited testimony, as supplemented by Beutlich 's general testimony . Hochtel also testified on this case , but his testimony is regarded as less credible , and to the extent it is inconsistent with Baldini's version , it is rejected. 5 The Respondent sought to prove that Tucker bragged unduly about his Buick and ran down the Studebaker product. Tucker denied that that was so. On all the evidence, I am persuaded that in conversations with fellow employees , Tucker did on occasions com- pare his Buick favorably with the Studebaker . But I do not believe that he did so offen- sively. The testimony of the Union 's witnesses on that point impressed me as exaggerated, 6 One employee , Willis Law , a witness for the Union , testified that it was generally be- lieved that it was company policy to remove an employee who could not get along with his group, but that it took a work stoppage to do so. 1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pole is the testimony of Chief Steward Shide and employee Wade Yoder who would have it that a work stoppage was actually in progress when Tucker was removed. In between is testimony such as that of employee Dominick Andresjewski, that there was a protracted work stoppage of about 15 minutes before Delee ordered the men back to work. There are other inconsistencies in the testimony of the Respondents' witnesses. Thus Delee testified that no union officials were present during the gather- ing of the men, while other witnesses for the Respondent place Gibson on the scene, as does Gibson himself.? On the basis of my appraisal of all the testimony, I do not believe that there was an actual work stoppage, and I credit Tucker's testimony in that respect. I believe, however, and I find, that sometime before Tucker's removal, information was conveyed to supervision that employees in the department were planning to sit down on Tucker about supper time because of the car he was driving. Chief Steward Shide and Divisional Representative Kamen were present at Depart- ment Foreman Solloway's office when Tucker arrived there. Steward Gibson also joined the group. Solloway told Tucker he was having trouble with the men because of Tucker's car and that the men were going to stop work at about 8 p. m. He asked Tucker whether he wanted to sell his Buick. Tucker said he did not. Stating that he could not send the department home because of one man, Solloway thereupon directed Tucker to see Beutlich. The next morning Tucker went to Beutlich's office where he met Kamen. Beutlich intimated that Tucker was disloyal to the Company by buying another's product. Tucker's explanation, that it was not a question of loyalty but a desire for a heavier car, left Beutlich unimpressed. So, too, did Tucker's statement that he was about to sell his car to his wife who had a job with the tele- phone company. Beutlich pointed out that the telephone company also was largely dependent on the Company for its income. Kamen did not participate in the dis- cussion, except to mention at one point that Tucker was one of those fellows who bought another brand because he could get a better trade-in deal. To that Beutlich replied, "Well that makes no difference." The interview ended with Beutlich instruct- ing Tucker to turn in his badge. Tucker has not worked for the Company since. 7. Robert B. Weymon Weymon worked in department 536. He purchased a 1953 Pontiac on July 18. Weymon testified that later that month Divisional Representative Ballatore warned him to get rid of the car, because "we are cracking down on some of these guys and you are the first in this department." According to Weymon, threats in substantially similar form were also made to him by President Louis Horvath and Vice-President Forrest Hanna of the Union. Bellatore, Horvath, and Hanna denied making the threats attributed to them by Weymon. Their denials are credited.8 On August 6, Weymon threatened a guard and the foreman wanted to discharge him. Through the intervention of Chief Steward Moore and Divisional Repre- sentative Ballatore the penalty was reduced to a 3-day suspension. The penalty was imposed on August 10 and Weymon returned to work on August 13. There had been other difficulties with Weymon, who did not get along well with the men in the department. Weymon admitted that he "had a lot of trouble over in that department." On the morning of August 18 there was a work stoppage at the place where Wey- mon worked. Foreman Manulo told Weymon that the men were refusing to work with him until he had disposed of his car. Weymon appealed for aid to Chief Steward Moore. Moore made no effort to induce the men to return to work, but promised Weymon to see what he could do for him. Moore contacted the foreman who advised him that he already had been in touch with Beutlich and had been instructed to send Weymon to Beutlich's office. He so reported to Weymon, stating, "That is the story, you have to go." The next day Weymon went to Beutlich's office with Moore and Ballatore. Beutlich criticized Weymon for not driving a Studebaker, and refused to accept Weymon's explanation that the car had been purchased by his wife. Beutlich told Weymon that he would have to sell his car and make peace with the men in order to return to work. Beutlich removed Weymon's badge, stating 7 According to Gibson, he was there only to investigate the situation, and took no position one way or the other. 8 Weymon impressed me as a witness who might shade or even improvise facts to aid his case. The denials of Horvath and Hanna carried great conviction, and in light of what the record otherwise reveals of them, I am fully convinced that they did not make the bald threats attributed to them. As for Ballatore's denial, I have some reservations. But in view of the unreliability of Weymon's testimony with regard to Horvath and Hanna, I feel that the doubt I have on the conflict between Weymon and Ballatore must be resolved against Weymon. STUDEBAKER CORPORATION 1333 he could have it back by providing the steward with a copy of a bill of sale of his Pontiac. Weymon sold his car in early September. He brought a copy of the bill of sale to Moore who arranged through Ballatore to have it turned over to Beutlich. He returned to work on September 7. 8. Harry Sarabyn Sarabyn worked on the day shift machining crank shafts in department 112. He purchased a 1953 Pontiac in late 1952. He also owned an older Studebaker which he drove to work. Sarabyn mentioned in the department on a number of occasions that he owned a 1953 Pontiac. Although no complaints were made directly to him, he did on occasions overhear remarks made by men in the locker room about his ownership of the Pontiac. As he was punching out on the afternoon of August 17- the day before his removal-some daymen asked Elmer Kavanagh, the night steward who was then coming to work, what he was going to do about a 1953 Mercury on the night shift. Kavanagh replied in substance that he did not know why they were complaining to him when Sarabyn, on the day shift, had a 1952 Pontiac that they should be looking after. To that Sarabyn retorted that he would have Kavanagh know that his Pontiac was not a 1952, but a 1953 model. At the beginning of the shift the next day, some of the men in the department began milling about. When Foreman Ora F. Mishler came over to investigate the cause of the disturbance, he found Chief Steward Rice "right there near where all the trouble was brewing," about 60 feet from Rice's regular station of work. Rice, as appears from his testimony, told Mishler that the men had shut down on Sarabyn and his 1953 Pontiac. Mishler told Sarabyn to report to the industrial relations office.9 Divisional Representative Anderson and Chief Steward Rice were present with Sarabyn at his interview with Beutlich. Sarabyn explained to Beutlich that although the Pontiac was not delivered until after he had been recalled, he had actually ordered it while he had been on layoff, and that he drove a Studebaker to work. Beutlich refused to accept that as an excuse. He said that it was bad adver- tising with Sarabyn's neighbors for him to work at Studebaker while driving another make of car. He told Sarabyn that he was not firing him, but was removing his badge. Sarabyn could return to work, he said, when he sold his Pontiac. When Sarabyn declared that even if he sold his Pontiac he would not buy a new Stude- baker, as he had no need for two cars, Rice observed, "Well, just give up the damned Pontiac, and you can go back to work though you don't buy another Studebaker." Sarabyn turned in his badge. He has not worked for the Company since.10 9. Donald and Lloyd Simmerman The Simmermans, sometimes referred to by their fellow workers as the "Dodge Brothers," 11 worked as inspectors of crank shafts in department 105. They in- spected the work of the men in adjacent department 112 where Sarabyn was em- ployed. Lloyd purchased a 1953 Packard in March, and Donald drove a 1953 Dodge which he claimed was his wife's. There is evidence that the Simmermans, especially Donald, in conversations with fellow employees in the locker room would on occa- sion compare their cars favorably to the Studebaker. Their conduct in that respect, however, was not of recent origin, but dated back before 1953. There is no evidence and no claim that the Simmermans incurred the enmity of employees in their par- ticular department because of the cars they were driving or the remarks they made. On the morning of August 18 the Simmermans were removed from their jobs by Foreman Knisely and sent to see Beutlich. There is a conflict as to whether Knisely's action was preceded by a work stoppage that morning relating to them. The Simmermans, whose testimony I thought generally credible, testified they knew of none. The Company made no effort to establish such a work stoppage by direct evidence.12 Nor did the Union, through its witnesses, attempt to establish a work B Although Sarabyn testified there was no work stoppage before he was removed, I am persuaded that in fact there was one. 10 The findings on Sarabyn are based upon a synthesis of testimony of Sarabyn, Mishler, and Rice to the extent credited. None of these witnesses impressed me as wholly reliable. u Because in 1949 they purchased the first two cars off the Dodge assembly line. 12 Foreman Knisely was not called as a witness. Foreman Ora F. Mishler of the adjacent department 112, who was called primarily to testify concerning the Sarabyn incident in his department that same morning, testified tangentially that he was told that the men from inspection had shut down because of two men in that department and that the men there were "coming to fist fights." Mishler 's testimony , apart from being hearsay, im- pressed me as contrived , and I do not credit it. 1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stoppage in department 105 where the Simmermans worked. However, according to two union witnesses, Chief Steward Rice of department 112 and Divisional Repre- sentative Kenneth Anderson, whose division included department 112, but not department 105, the work stoppage in department 112 was extended before its con- clusion to support an employee demand that the Simmermans also be removed. On all the evidence, I find that there was no work stoppage in department 105, but that during the Sarabyn incident in department 112, related above, a demand was made by at least some of those involved in that incident that the Simmermans also be re- moved. The record shows that Chief Steward Rice of department 112 communi- cated that fact to the steward and foreman of department 105 before the Simmer- mans' removal, and that Divisional Representative Anderson similarly notified Divisional Representative Mike Lenyo whose jurisdiction covered department 105. Rice, Anderson, and Lenyo were present at the Simmermans' interview with Beut- lich. After indicating that their operation of "off-brand" cars reflected a lack of loyalty to the Company, Beutlich informed the Simmermans that they were being removed from their jobs because of the work stoppage, and would not be permitted to return until they had made peace with the men. When they asked why no action was taken against others in the department with "off-brand" cars, Beutlich told them that similar action would be taken against the others if and when their cases were brought up. Beutlich directed the Simmermans to turn in their badges. After leaving Beutlich's office, the Simmermans went to the union hall. They asked President Horvath what could be done to restore their jobs. Horvath re- ferred them to Anderson. They told Anderson that they would arrange to dispose of their cars within 2 weeks if allowed to return to work in the meantime. At An- derson's suggestion they met with him at Beutlich's office the next morning, and from there Anderson took the Simmermans to department 112. Anderson gathered together the employees in department 112 and reported to them the Simmermans' proposal, and then had the Simmermans confirm it directly to the men. After the men expressed their willingness to go along, Anderson arranged for the return to the Simmermans of their badges. The Simmermans went back to work that day. They continued to work for the next 2 weeks but did not sell their cars. On September 2, while Anderson and Rice were at the foreman's office with regard to another grievance matter, there was a work stoppage in department 112. A number of men in that department declared they would not return to work until the Simmermans were removed. Anderson tele- phoned Lenyo, the divisional representative of department 105, and advised him of the work stoppage. The Simmermans were removed from their jobs by their fore- man and again sent to Beutlich's office where they met Anderson and Lenyo. Beutlich told them that because they had not sold their cars as promised, and because a further disturbance had ensued, they would be required to turn in their badges. Donald Simmerman has not worked since that time. Lloyd subsequently sold his car and bought a 1954 Studebaker. He reported it to Beutlich on January 6, 1954. Beutlich called in Anderson and Lenyo and showed them the documents evidencing the sale and purchase. Anderson took Lloyd back to the department, where a ma- jority of the men voted to approve his return. He returned to work on January 7, 1954. 10. John Collins Collins worked on the second shift in department 286 performing trunk and body repair for the body line. He purchased a 1953 Oldsmobile on July 2. In August several men in the department told Chief Steward Stanley Godair that they did not want to work with Collins because of the car Collins was driving. That same day Group Steward Boyd approached Collins and asked him if he would be willing to sell his car. Collins said he would if he could find a buyer. About 2 weeks later, the attention of Department Foreman John J. Szabo was directed to the fact that a group of some 12 employees were sitting down, refusing to work. Szabo went over to investigate. He found the steward sitting in the midst of the group. When he inquired, "What's up? " the steward informed him, "They ain't going to work until Johnnie Collins sells his car." Szabo asked the men to give him a chance to see what he could do with Collins, and to return to work in the meantime . To this the steward agreed and the men returned to work. Szabo then spoke to Collins about selling his car. Collins expressed his willingness to do so to protect his job, but said he did not want to sell it for "peanuts." Szabo urged Collins to see what he could do about it over the weekend. On the following Monday, August 24, Steward Boyd again asked Collins whether he had gotten rid of his car. Collins told Boyd that he had not. Boyd left without STUDEBAKER CORPORATION 1335 a further word, but 5 minutes later returned with Chief Steward Godair who told Collins that he was in trouble as the men were refusing to work with him because of his "off-brand" car. At that time there was an actual work stoppage. Presently, Foreman Szabo came over. Upon learning from the steward that the men were refusing to work with Collins because of his car, Szabo removed Collins, and sent him to Beutlich. Godair and Divisional Representative Hinkle appeared with Col- lins at Beutlich's office the following morning, August 25. Beutlich told Collins that he had created a disturbance in the department by purchasing an "off-brand" car, and that he would not permit him to return until he made himself "right" with the group. Collins sold his car about the middle of the following week and brought in a notarized statement to that effect which he gave the steward. His badge was returned, and he came back to work on September 3. 13 11. Ernest L. Kingsafer Kingsafer mixed paint in department 947-B. The paint mixed in that department is used in painting fenders in adjoining department 164. On August 26, Kingsafer's foreman received a visit from the foreman and several stewards connected with de- partment 164. Shortly thereafter, Kingsafer's son, who is the steward for depart- ment 974-B, called his father aside and told him that the stewards from depart- ment 164 had reported that the men in 164 were going to stop taking paint from the mixing room after lunch because Kingsafer owned a 1953 Buick and that the chief steward had been sent for. Shortly thereafter Kingsafer's foreman directed him to go to Beutlich's office. His son, the chief steward of his department, and the chief steward of department 164 went along. In addition, Divisional Representative Lenyo of Kingsafer's department and Divisional Representative Hagenbush of de- partment 164 were present at Beutlich's office. Beutlich told Kingsafer that he had been called in because of a threatened work stoppage over the car Kingsafer was driving. The Company, Beutlich said, could not have a stoppage because Kingsafer had an "off-brand" car on the parking lot. Kingsafer protested that he did not drive his own car to work, but drove with his son. Beutlich nevertheless insisted that King- safer would have to sell his car to make peace with the men before returning to work. Several days later, Kingsafer purchased a 1950 Studebaker, without, however, dis- posing of his Buick. He called on Beutlich with evidence of his purchase, advising Beutlich that he had not yet sold his Buick because he did not want to take too much of a loss. Beutlich suggested that Kingsafer take the matter up with Divisional Rep- resentatives Lenyo and Hagenbush. Kingsafer did as suggested. According to his credited testimony, partially denied by Hagenbush, Hagenbush promised to see the men in department 164 so as to determine their attitude and then call Kingsafer back next day, but Hagenbush never contacted Kingsafer again. Kingsafer has not worked for the Company since his badge was removed on August 26. 12. Alex Orbon Orbon, at the times here relevant, worked on the truck assembly line in depart- ment 284, having "bumped" into that department about August 24. Orbon drove a 1953 Dodge. During the lunch hour on August 27, some of the men in the depart- ment spoke to Steward Anthony Langer about the car Orbon was driving. Later that day Langer spoke to Orbon about his car. He told him the men in the depart- ment would not work with him if he drove an "off-brand" 1953 car. Orbon told Langer that the Dodge was not owned by him, but by his father-in-law. Langer promised to see what could be done about it. According to his testimony, he then reported to the men what Orbon had told him about the ownership of the car, stating that if his father-in-law allowed him the use of a car, he would drive it. Langer reported the situation to Chief Steward Harry Strauss, who, Langer testified, told him he had done the right thing. Langer raised the question with Strauss as to whether under the circumstances Orbon should be qualified for his job.14 Strauss told Langer, "You have no alternative but to qualify Orbon regardless of his driving the Dodge, is The testimony of the various witnesses with regard to the Collins incident is not uni- form ; there are material inconsistencies not only between the testimony of Collins and the Respondents' witnesses, but among the various versions of the Respondents' witnesses. The findings are based upon a synthesis of the testimony, to the extent found credible, of Col- lins, Szabo, Godair, and Hinkle. In general, the testimony of Collins and Szabo impressed me as more credible than that of the union witnesses 14 Employees bumping into a department had to be found qualified by the foreman after a 4-day breaking-in period. The department steward would be consulted in that connection. 1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which has nothing to do with it." Strauss testified that when he came to work the next morning , August 28 , the men gathered about him and asked what he planned to do about Orbon and his Dodge, stating that if he did nothing , they would. That same day, Strauss went to Foreman John Otto and told him there would be a stoppage unless Orbon was removed . Thereupon , Otto , accompanied by Strauss, went to Orbon at his place of work, and told him he was being removed from his job because the men would not work with him. At that time the assembly line was running and the men were at work. Orbon was taken to the department office. Otto telephoned Beutlich and told him about Orbon. Beutlich informed Otto that there was no basis for sending Orbon to Beutlich's office unless the line had been shut down or there was an actual work stoppage. Otto reported Beutlich's com- ments to Strauss. Strauss then said, "Let us go and shut it down." Thereupon, Otto went outside, pushed a control button to stop the line, and then again started up the line almost immediately thereafter. Following this maneuver, Otto returned to the office, again phoned Beutlich, told him the line had been shut down, and appar- ently received Beutlich's approval to send Orbon to the industrial relations office.15 Strauss accompanied Orbon to Beutlich's office where they met Divisional Repre- sentative Louis Nagy. In reply to Beutlich's inquiry as to why Orbon was there, the steward stated that it was because he was driving a Dodge. Beutlich declined to accept Orbon's explanation that the car did not belong to him, but to his father-in- law. He told Orbon that he should buy a Studebaker "and make peace with the fellows in the shop." He told Orbon, as he had told others, that he was not being removed because of any company policy, but because the Company could not have one man cause a shutdown. Orbon's badge was removed. After leaving Beutlich's office Orbon asked Nagy what he could do. Nagy told him he would have to sell the Dodge and that when he came back with a bill of sale he could obtain the return of his badge. Orbon insisted that the Dodge was not his to sell. Nagy and Strauss told Orbon that if he would bring in a title to prove his assertion by the following Monday, they would see what they could do with the men. The next morning, as arranged, Orbon met Strauss and Nagy at the union office in the industrial relations building. He showed them a title to the car in the name of his father-in-law. The title was dated August 29, the date following Orbon's removal. Strauss and Nagy pointed out to Orbon that the title was recently dated and expressed the view-probably correct-that the transfer was not a bona fide one and that Orbon was the real owner of the car.16 Orbon promised not to drive the Dodge any more and to buy a used car, but Nagy and Strauss refused to accept that as a solution to his problem. They told him, how- ever, that if he would place an order with the Company for a new Studebaker, he could go back to work. When Orbon stated that he could not afford to make such a purchase, they said, "Well it looks as if you don't want your job very bad." Orbon asked for permission to see Horvath. But the Union's president brushed him aside, stating that if Orbon wanted to see him about his car situation, he did not want to talk to him as it was a matter to be taken up with Orbon's divisional representa- tive. Orbon has not worked for the Company since his badge was removed. 13. Emanuel C. Kepler Kepler worked on the main assembly line in department 166. He purchased a 1953 Buick on June 29. He had previously owned a 1951 Studebaker Land Cruiser. Kepler had found the Studebaker unsuitable for his personal use. He is a large man, 6 feet, 7 inches tall with exceptionally long legs. The size and design of the Stude- '5 The facts found in this paragraph are based principally upon Orbou's credited testi- mony. The accounts given by Otto and Strauss varied in material respects from that of Orbon. Their testimony , however, particularly on cross-examination was confused and contradictory According to Strauss, there was an actual work stoppage before Orbon was first removed from the line. Otto in his testimony makes no such claim. He says he first removed Orbon after Strauss came to him and told him there would be a stoppage if Orbon was not removed He states however, that there was a shutdown of the line for perhaps a minute or two after Beutlich informed him that it would require a shut- down to remove Orbon because of the car situation . Although Otto, like Strauss, denied that he was the one who shut down the line, he admitted when pressed on cross-examina- tion that there was a "faint possibility" that he pushed the button to stop the line. 19 The testimony of Nagy and Strauss, that they nevertheless offered to take the title to the men and persuade them to allow Orbon to return , but that Orbon would not let them have the title, is not credited. STUDEEBAKER CORPORATION 1337 baker was such as to place him in a crowded position in the driver's seat. To brake the Studebaker without obstruction by the shifting gear, it was necessary for him to put his knee to a side and to press the brake with the side of his sole. Kepler not only found that uncomfortable but considered it unsafe. Before purchasing the Buick, Kepler informed his group steward, Bud Bowell, of his intention to trade his Studebaker for a larger car because of his physical difficulties. Bowell told Kepler that he did not blame him for doing so, and stated that he would protect Kepler as far as he could. No one ever told Kepler it was union policy to require employees to buy Studebakers, but he knew from the talk he had heard that men on the line felt that employees of the Company should show their loyalty to the Company by buying its product. Several weeks after Kepler purchased the Buick, Bowell informed Kepler that he had heard that some of the men-not in Kepler's immediate group, but down the line-were going to stop work because of his Buick. A similar warning was given him by his foreman a couple of days before the occurrence of the actual incident precipitating his removal. The foreman told him that he had heard that the men were going to shut down the line because of the new "off-make" cars that were being purchased, and that he did not know whether Kepler would be in on it or not. On August 31 the line stopped. Kepler's foreman advised him that the stoppage was directed against his ownership of the Buick. He removed Kepler from the line and instructed him to see Beutlich. At Beutlich's office, Kepler found Steward Bowell, Divisional Representative Hagenbush, and an unidentified employee down the line who had purchased a Ford and who was apparently involved in the same difficulty. Kepler explained to Beutlich his reasons for purchasing a larger car. But Beutlich nevertheless asked Kepler for his badge. He told Kepler that the Company had no policy requiring its employees to purchase Studebakers, and was removing Kepler because of the difficulty that arose from the unwillingness of others to work with him. At the conclusion of the interview Hagenbush spoke up and said he could prove to Kepler that one as tall as he could drive a Studebaker. He took Kepler to the part of the factory where the finished cars were being "dolled up," and had him sit in the various models. Kepler was able to demonstrate that in none of them was he able to brake the car without using the side of his sole. Hagenbush suggested the car could be fixed up by the Company with a special 2-inch extension on the track of the seat so that he might brake without too much discomfort, but Kepler objected to that on the ground that it would leave too little room for those in the rear seat. Hagenbush told Kepler that that was all he could do, and if Kepler insisted on his position the Union could not protect him. About a week later Kepler went back to see Beutlich about his pay check. At that time Beutlich commented that he considered it a shame that Kepler had to be removed in light of his physical difficulties with the Studebaker, and that he did not know why the Union could not fix it up with the men so that he might return. Sub- sequently, Kepler called on Union President Horvath who told him that he could not help him unless and until he sold his Buick, because otherwise the men would not work with him. A further appeal by Kepler to Hagenbush drew substantially the same response. Kepler has not worked for the Company since his removal on August 31.17 14. Charles W. Buwa Buwa worked on the second shift as a millwright in the maintenance department (department 921) of the foundry division. The millwrights shared a locker room with the machine repairmen whose department was next to 921. On August 19, the stewards of both departments, in the presence of most of the employees who had gathered about Buwa, asked Buwa whether he was driving a 1953 Plymouth. When Buwa confirmed his ownership of the Plymouth, the stewards told him that the men would not work with him because of the car he was driving. The stewards reported that to Foreman Bruce Meyers who sent Buwa to Everly of the industrial relations office. Divisional Representative Andrews joined Buwa at Everly's office. Everly told Buwa that he was causing a work stoppage, that the men would not work with him so long as.he was driving a 1953 Plymouth, and that he would have to "get right with the fellows" before he could go back to work. Buwa agreed to try to sell his Plymouth, and an understanding appears to have been reached under which Buwa 17 The findings as to Kepler are based upon Kepler 's credited testimony . Hagenbush and Horvath took issue with certain portions of Kepler's testimony relating to his contacts with them following his removal . (their testimony , where inconsistent with Kepler 's, is not credited. 1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have 10 days to do so. His badge was not removed, and he was allowed to return to work the next night. Buwa allowed the 10-day grace period to expire with- out disposing of his car. On August 31, Buwa was again approached by the stewards from the maintenance and machine repair departments, as a group of about 20 em- ployees from both departments gathered about him. One of the stewards told him that he could not work there as long as he drove his Plymouth. The foreman then again sent Buwa to Everly's office where the two stewards and Divisional Representa- tive Andrews joined him. Everly told him that he would have to surrender his badge because he had caused a work stoppage by reason of his retention of the Plymouth. Buwa has not worked for the Company since. 15. Isadore Swedarsky Swedarsky worked on the second shift on the final assembly line in department 166. He owned a 1953 DeSoto. He was 1 of about 6 or 7 employees in his work- ing group who owned late models of cars other than Studebakers. About a week or 10 days before the car incident related below, Swedarsky became involved in a fight with a man who worked in an adjacent group, but that did not grow out of the car situation. On August 28, Group Steward Oliver Coryell and Chief Steward Dale Zink approached Swedarsky at his place of work. They asked him if he was driving a 1953 DeSoto, explaining that a complaint to that effect had been made by someone in the group adjacent to his own. After Swedarsky admitted that he owned a DeSoto, he was told by his group steward and the group foreman to report to the general foreman's office. There is a dispute as to whether the department was shut down by a work stoppage at that time. The testimony on that point is conflicting and confusing. On all of it, however, I am satisfied that while there was no actual work stoppage involving Swedarsky at that time, a threat of a work stoppage directed against his ownership of an "off-brand" car had been made by employees in an ad- jacent group under the stewardship of Kenneth Ireland, and had been reported to the chief steward who in turn reported it to supervision. General Foreman Brod- zinski sent Swedarsky to Everly's office where Swedarsky found Zink and Divisional Representative Kamen also in attendance. Swedarsky told Everly that he had been pulled off his job because he was driving a 1953 DeSoto. Everly said that there was nothing he could do for Swedarsky. The Company, he made it a point to empha- size, was not firing Swedarsky or laying him off. It was simply not permitting him to work until he had made peace with the men. In the meantime the Company would have to deprive Swedarsky of his badge. But when Swedarsky asked leave to go back to the department to see what he could do about making peace in his own way, Everly declined to grant him leave. Swedarsky asked Kamen and Zink what they could do for him. They said, "There is nothing much we can do." A day or so later Swedarsky went to the union office and asked Vice-President Hanna for a hearing before a grievance committee. Hanna told him that if he had anything to say he could come to an open union meeting and state his case. Swedarsky did not pursue the matter further. He has not worked for the Company since. 16. Edward S. Engle Engle worked in department 473, driving a tractor which served department 477 among others. He was a group steward in department 473. About the middle of August, according to Engle's credited testimony, Chief Steward Cleo Hay of depart- ment 160 asked Engle whether he was going to sell the 1953 Plymouth station wagon he was driving. When Engle said he was not, Hay commented that it looked as if the men would make him sell.18 On September 1, an employee in the tool crib, named Charles Smith,19 was removed from his job and had had his badge taken away be- cause he was driving a 1953 Plymouth. The following day some of the men in de- partment 477 complained to John Parko, the chief steward of department 477, that they did not think Engle, who also owned a 1953 Plymouth, was in a position to be accorded more favorable treatment. That same day Parko and an employee named Eisely came to Engle and told him he had 10 days to sell his car, stating that if he did not do so Within that time he would be sent to Beutlich's office. Engle replied that he preferred to see Beutlich without waiting the 10-day period, and asked them to arrange for an appointment with Beutlich at once. Parko then went to the office of Foreman D. J. Knapp who, is Hay testified he could not recall the incident. His denial appeared to me to lack con- viction, and is not credited. 11 Charles Smith is not named as a complainant in this proceeding. STUDEBAKER CORPORATION 1339 after calling Beutlich, reported to Engle that Beutlich had stated that without a work stoppage there was no basis for removing Engle from his department and sending him to Beutlich's office. Parko so advised Engle. Engle then told Parko to tell the men to sit down so that an incident could be raised that day to enable him to see Beutlich . Parko obliged, according to his testimony, and so did the men. Parko then reported to Foreman Knapp that the men in department 477 were refusing to work as long as Engle continued to make deliveries to that department. Knapp com- municated with Engle's foreman, and made arrangements to have Engle removed and sent to Beutlich's office.20 Engle at his own request was accompanied to Beutlich's office by Chief Steward Strong of his department.21 'Divisional Representative Nagy also attended. Engle explained to Beutlich that he had to have a station wagon for a TV business he had on the side, and that he had purchased a Plymouth because no Studebaker car of that model was then available. Beutlich told Engle that the Company could not allow a work stoppage because of the car he was driving. Beutlich asked Engle if he could afford to buy a new Studebaker, explaining that if he did so he could keep his station wagon for his business. Engle answered that he would have retained his old passenger car and bought a truck if he could afford two cars, but as it was he had to have a single car which could double for both purposes. During the conference, one of those present suggested that a vote be taken in Engle's department to determine whether the men there were willing to permit him to retain the Plymouth. Beutlich asked Nagy whether he was willing to go along with this suggestion. Nagy stated at that time that it was agreeable to him, and so did Engle. Engle's badge was not removed and Engle was told to go back to work. The understanding was that Engle would still have 10 days to sell his car, even if the men voted against him. After leaving Beutlich's office, Nagy changed his mind, and told Engle that he would not take a vote as had been suggested, because it was against his principles. Engle returned to work the next morning. He sold his Plymouth 9 days later and bought a 1950 Studebaker According to Engle, he lost 6 hours work when he went home after leaving Beutlich's office, but it appears that he did this of his own volition and not because he was barred from returning to work that day. 17. Vernon H. Barkman Barkman operated a lift in department 160, moving trucks from one production line to another. On June 17, 1953, he bought a 1953 used Chevrolet. None of his fellow employees complained to him about it. In the latter part of August his steward, Simpson, spoke to him about his car. Barkman explained that he had bought a used car, and assured Simpson that if it had been a new one it would have been a Studebaker. Simpson said that "he understood the proposition and he knew what to tell the boys." On September 1, Steward McNutt from the next line came to Barkman and said he wanted to help out Barkman with regard to his car. Barkman brusquely replied that he knew how McNutt wanted to help and he could take care of his own business. The next day Simpson told Barkman there was talk of shutting down the line the next morning. The following morning, September 3, the line was shut down for about 30 seconds. The record does not reveal the de- tails of the shutdown. While the line was down, the foreman told Barkman to go to the office. From there Barkman went to Beutlich's office along with Steward Simpson, Chief Steward Hays, and Divisional Representative Nagy. Barkman ex- plained to Beutlich that he had not purchased a new "off-brand" car, but a used one. He told Beutlich that he had always considered that permissible with the Company and the Union. It was decided that if Barkman would agree to dispose of his car Nagy and Hays would go back to the factory and find out from the men how much time they would give him to sell it. Barkman did not go back to work that day. Later Nagy reported to Barkman that the men would allow him 10 days to sell the car. He went back to work the next morning, losing only 1 day's pay. He sold his Chevrolet within the 10-day period. 18. Elmer E. Kovach Kovach worked as a test driver-mechanic at the Company's proving grounds, located some distance from its main plant. He owned five Oldsmobiles since 1948, and purchased his last one in May 1953. Kovach testified credibly that before the ° The findings in this paragraph are based upon a reconciliation of testimony of Engle, Knapp, and Parko, to the extent that that of each has been found credible. n Strong testified that there had been no difficulty in his department with regard to Engle's ownership of a 1953 "off-brand" car. 1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stewards first spoke to him about his car on September 1, as reported below, he had heard no complaints directly or indirectly about his ownership of an Oldsmobile either from the men with whom he worked or from any union official. The Respondents made no effort to contradict Kovach's testimony directly in that respect. On the morning of September 1, Steward Spychalski and Chief Steward Zook called Kovach to one side and asked him whether he was going to sell his 1953 Oldsmobile. Kovach told them he was not. Zook and Spychalski testified that they were led to speak to Kovach about his car that morning because a group of men had asked them that day what they intended to do about Kovach. "After all," testified Zook, "we represent the men in the department. If they want us to do something, that is what we do." On the afternoon of September 1, Zook and Spychalski again spoke to Kovach and, along with him this time, to an employee named Quier who owned a 1953 Mercury. They asked Kovach, and also Quier, whether they would sell their 1953 "off-brand" cars. Quier agreed to sell. Kovach flatly refused. The stewards then told Kovach that they would give him until the Tuesday after Labor Day to sell. If he did not sell his car within that time, they told him, "they couldn't help it if the men wouldn't work with him." Kovach did not sell his car within the period allowed him. On Tuesday, Septem- ber 8, Spychalski and Zook again came to Kovach and asked him if he had sold his Oldsmobile. Kovach replied that he had not and would not. At that time, according to Kovach's credited testimony, the men were at work.22 After hear- ing Kovach's reply, the stewards went into Foreman Butzbach's office and presently returned with him to Kovach's place of work. Butzbach, in the presence of the stewards, told Kovach, "You know what is going on; you will have to go to town and see Mr. Beutlich." 23 Kovach refused to go to Beutlich's office unless he was afforded an opportunity first to find out how many men would refuse to work with him. The stewards thereupon called the men together, handed out slips of paper, and took a poll on that question. The poll showed that 18 would not work with him while he had the Oldsmobile, and 6 would.24 Kovach went to Beutlich's office with Zook and Spychalski. Divisional Repre- sentative Lenyo also attended. The interview there followed the usual pattern. Beutlich told Kovach that the Company did not have a policy requiring employees to drive Studebakers, but that it could not have a shutdown on account of one man, and that he could return to work when he could get along with the men. Kovach asked whether it would be all right if he bought a 1954 Studebaker when the model change came out in about a month. Zook said "No," that the men in his department would not work with him unless he first sold his Oldsmobile, whether or not he bought a Studebaker. Kovach's badge was removed. He has not worked for the Company since. 22 Although Foreman O. K. Butzbach testified there was a work stoppage that morning, his testimony is not supported by Zook and Spychalski, and is not believed. 28 According to Kovach, Spychalski and Zook told him somewhere along the line, "This isn't our doing; we have orders from town." Both stewards vigorously denied making the quoted statement attributed to them, although they stated that they might have said they had orders or instructions from the men. According to them, the only reference made to "town"-which usually denotes the plant-was contained in Butzbach' s direction to Kovach to see Beutlich. Although I consider Kovach's testimony generally credible, I am not entirely persuaded that he was not mistaken or confused in his recollection in this particular respect, and, accordingly, make no finding that the statement was made. 24 The findings in this paragraph are based on Kovach's credited testimony. The testi- mony of Butzbach that the poll was taken at his request, and at Beutlich' s suggestion, before Kovach was ordered to Beutlich' s office is not credited. Butzbach's testimony in that respect is not supported by the Union' s witnesses. MCDONALD, MCLAUGHLIN & DEANS and OLYMPIC PENINSULA INDE- PENDENT WOODWORKERS UNION, PETITIONER. Case No. 19-RC-1529. December 10,195.E Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Albert Gese, hearing officer. 110 NLRB No. 200. Copy with citationCopy as parenthetical citation
