Lifetime Door Co.

LIFETIME DOOR COMPANY 319 then told Meek he was fired and asked him to leave, which he did. Meek on the other hand, testified that Ragsdale told him around 4 p.m. of that day that he had to do all of his work within a 15-minute period starting at 15 minutes before the hour, which, it is conceded, would have been an impossible task. He further testified that Ragsdale complained that Meek was taking too long for lunch, that Ragsdale told him "I wouldn't work for a company that wouldn't want me working," and asked how strikers could stop trucks and trains from coming into the plant. Shortly afterward, according to Meek, Ragsdale told him to punch out and get off the lot. The two versions of the dismissal incident cannot be reconciled. The illegality of the discharge depends upon the uncorroborated testimony of Meek. His version is contradicted not only by Ragsdale, but indirectly as well as by the records kept by Meek and introduced in evidence. These records show high steam pressure and low moisture readings both at 3 and 4 p.m. which presumably should and could have been corrected by Meek in the ordinary course of his duties. These records also show an unvarying pressure between 7 and 10 p in , although the moistuie was still somewhat below the optimum point. In short, I am not convinced that the General Counsel has satisfied that burden of proof which is incumbent upon him to uphold a charge of discriminatory dis- charge. As the court noted in N.L.R.B. v. Barberton Plastics Products, Inc., 354 F.2d 66, 69 (C.A. 6), "the uncorroborated testimony of an untrustworthy and interested witness, who stands to profit from a back pay award, may be held under such facts and circumstances not to constitute substantial evidence on the record considered as a whole." Meek's record as an employee left much to be desired. His failure to record steam pressure was the last straw in an accumulation of various dissatisfactions with Meek's behavior. Whether or not the summary discharge was appropriate under the circumstances need not be decided here. The only issue is whether Meek's discharge was motivated, at least in part, by union activities. There is, however, a paucity of evidence to support such a conclusion. Admittedly Rags- dale knew that Meek was a union adherent; Ragsdale knew that Meek had acted as a union observer at the election. It is significant, however, that there is no suggestion of any discrimination practiced by the Respondent against Roger Posey, the other union observer. Nor does the record indicate any antiunion attitude on the part of Ragsdale or anyone else. The only argument in support of the allegedly unlawful discharge, therefore, is the claimed assignment of unreasonable duties to Meek. The assignment of unreasonable duties was credibly contradicted by Respondent's wit- nesses. Even without such contradiction, the result would be the same inasmuch as there is no evidence to tie in the alleged assignment of unreasonable duties with any union animus on the part of Respondent. There is as much reason to link the imposition of these unreasonable duties with personal dislike on the part of Rags- dale for Meek or any other reason unconnected with union activity. Considering the record as a whole, therefore, I conclude that the General Counsel has not met the burden of proof necessary for a finding of a discriminatory discharge under the Act. RECOMMENDED ORDER It is ordered that the complaint in Case 26 -CA-2114 be, and the same hereby is, dismissed. Lifetime Door Company and Local Union No. 3135, United Broth- erhood of Carpenters and Joiners of America , AFL-CIO. Case 11-CA-2816. August 3, 1966 DECISION AND ORDER On March 15 , 1966, Trial Examiner William W. Kapell issued his Decision in the above -entitled proceeding, finding that the 160 NLRB No. 32 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to these allegations. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Deci- sion, and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 entire record in the case, including the Trial Examiner's Decision, the exceptions, and the supporting briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 1 1 The address and telephone number for Region 11, appearing at the bottom of the notice attached to the Trial Examiner 's Decision , is amended to read : 1624 Wachovia Building, 301 North Main Street, Winston-Salem , North Carolina, Telephone 723-2911. TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER STATEMENT OF THE CASE Case 11-CA-2816, a proceeding under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard in Orangeburg, South Carolina, on December 21, 1965,1 with all parties participating pursuant to due notice on a complaint 2 issued on October 14, by the Regional Director of Region 11 of the National Labor Relations Board , hereinafter called the Board, alleging violations of Section 8(a)(1), (3 ), and (4 ) of the Act by Lifetime Door Com- pany, hereinafter called the Respondent. The complaint, in substance, alleges that Respondent threatened employees with loss of their jobs because they had given tes- timony under the Act; discriminatorily discharged employee Anderson Walker and thereafter failed and refused to reinstate him; and discriminatorily issued a written warning to employee Willie Galloway and informed him that a further warning would lead to his discharge . In its duly filed answer Respondent denied the commis- sion of the alleged unfair labor practices , and the supervisory status of Clyde Frazier, as alleged in the complaint, and also averred that the warning notice issued to Willie Galloway and the discharge of Anderson Walker were for good and suffi- cient cause. All parties were afforded full opportunity to be heard, to introduce rele- vant evidence, to present oral argument, and to file briefs. General Counsel and 1 All dates hereinafter refer to the year 1965 unless otherwise noted. 2 Based on a charge filed on August 24, and an amended charge filed on October 11, re- spectively, by Local Union No. 313 '5, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter referred to as the Union LIFETIME DOOR COMPANY 321 Respondent filed briefs which have been duly considered. Upon the entire record 3 in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, a corporation, has owned and operated a plant in Denmark, South Carolina, where it has been engaged in the manufacture of doors. During the year prior to the issuance of the complaint herein, Respondent, in the course and conduct of its business operations at said plant, purchased and received materials valued in excess of $50,000 from points outside the State of South Carolina, and shipped from said plant, finished products valued in excess of $50,000 to points outside the State of South Carolina. Respondent admits, and I find, that at all times material herein it has been engaged in commerce within the meaning of the Act. It. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background-the prior Board proceeding Pursuant to charges heretofore filed by the Union against Respondent as set forth in Case 11-CA-2638, an amended complaint was issued therein alleging violations of Section 8(a)(1), (3), and (5) of the Act, and a hearing therein was held on August 10 and 11. Trial Examiner William W. Kapell herein, who was also the Trial Examiner in the prior case, issued a Decision in that case on January 20, 1966, in which it was found that Clyde Frazier and Benjamin Hare were supervisors within the meaning of the Act, and that Respondent engaged in unfair labor prac- tices violative of Section 8(a)(1), (3), and (5). It is alleged in the instant case, in which the same parties, attorneys, and representative appear, that Respondent was motivated to threaten its employees with economic reprisals, to issue a warning notice to Galloway, and to discharge Walker because of their union activities and their participation as witnesses at the prior Board hearing. B. The supervisory status of Clyde Frazier As in the prior Board case, Respondent has denied the supervisory status of Frazier, who participated in the alleged violative conduct herein. It was stipulated that if Craven L. Deese, International representative of the Union, were called to testify herein, his testimony would be the same as given in the prior Board case relative to Frazier's status, including an exhibit, received herein as General Coun- sel's Exhibit 3. Such uncontradicted testimony established that he and Union Busi- ness Agent Billy Henderson met with George E. Alexander, Respondent's manager, just prior to the representation election held for Respondent's employees on Janu- ary 22, to determine what employees would be eligible to vote; that Alexander handed Deese and Henderson a list containing the names of the employees, who he claimed were eligible to vote, and their job classifications; that the list contained the names of 39 employees, including Clyde Frazier's with a job classification of "maintenance supervisor"; and Benjamin Hare's with a job classification of "ship- ping supervisor"; that Alexander stated their names somehow got on the list, and inasmuch as they were, in fact, supervisors, he asked whether their names could be stricken without preparing a new list; that Deese agreed provided that the changes 3 At the hearing General Counsel was unable to offer in evidence the formal papers; their delivery to him having been delayed by the Christmas mailing rush. The parties, there- upon, stipulated that these papers would be offered in evidence when submitted by Gen- eral Counsel; that Respondent would have 5 days after receipt of copies thereof to object to their admission ; and that the record would be kept open for this purpose. No objections having been received, the formal papers identified as General Counsel's Exhibit 1(a) through 1(q) are hereby admitted in evidence. 257-551-67-vol. 160-22 322 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD were initialed; and that a line was then drawn through those names, and Alexander, Deese,. and Henderson each initialed the changes, as appear on the exhibit. Neither Frazier nor any other witness testified on behalf of Respondent relative to his status in the prior case. At the hearing herein, the General Counsel introduced testimony by Walter E. Martin, plant manager, to the effect that Frazier, as foreman, had signed and issued a warning notice dated August 19, to employee Willie Galloway .4 On cross- examination Martin explained that during the week of August 16, Frazier was sub- stituting for Foreman Hare, who ordinarily was in charge of the trim saw but was then on vacation, and that when Hare returned from his vacation, Frazier went back to his regular job in maintenance. Martin testified further, in connection with the removal of a lift shaft from a tow motor involved in the discharge of Anderson Walker (see infra ), that he had a maintenance crew.5 Frazier, who testified on behalf of 'Respondent, was asked only the following question regarding his super- visory status: "And are you chief maintenance man at the Lifetime Door Com- pany?" to which he replied in one word, "yes." 5 Conclusions Respondent submits that the evidence introduced by General Counsel concerning Frazier's involvement in the warning notice issued to Galloway , which might tend to show his supervisory status, was not only nullified by Martin's explanation but actually indicated that a contrary conclusion should be drawn. I find it more reason- able to regard the primary object of that evidence as part of the proof of the alleged 8 (a)(3) violation against Galloway, which also incidentally has a bearing on the status of Frazier . However, even assuming Respondent's contention that_ Frazier was temporarily substituting for Hare as foreman in charge of the trim saw during the latter's vacation, I find nothing inconsistent with that assignment and the retention of his regular job as maintenance supervisor. I find further that the new evidence adduced herein concerning Frazier's status bolsters Deese's testimony to, the effect that Respondent acknowledged Frazier's position - as a maintenance super- visor. Such evidence clearly establishes that there was a maintenance crew consisting of at least three employees, and that as indicated infra, the reports concerning the broken part of Walker's tow motor were conveyed by members of the maintenance crew to Frazier, who as head of maintenance, reported it to the plant manager. It is also significant to note that no evidence was introduced to indicate that any employee, other than Frazier, was maintenance supervisor or that there was no maintenance supervisor. The record also shows, as related infra, that Willie R. McCann was Walker's supervisor and was directing his work at the time when Walker's alleged negligent operation of a tow motor caused a sprinkler water valve to break and flood the surrounding area. This incident was the last of a series of accidents leading up to Walker's discharge. However, only Frazier, who was not Walker's supervisor, was.called in consultation by Martin to discuss Walker's dis- charge, thereby reflecting the relative importance of.Frazier's position. Furthermore, I attach little weight or significance to Frazier's one word answer to the leading question put to him concerning his status. I accordingly conclude that Frazier was a supervisor at all times material herein. 4The warning notice (General Counsel's Exhibit 2) is discussed infra, in connection with the alleged violation committed in its issuance It, however, also reflects on the status of Frazier Galloway, who testified on behalf of General Counsel with respect to the is- suance of the warning notice to him, admitted on cross-examination that he gave a sworn statement to Respondent in Jusie in which he named only lIartin, Burns, and Hare as supervisors The statement was given to Respondent's attorney in connection with Respond- ent's preparation for the hearing in the prior Board case, and, as noted in the decision issued therein, little probative value was attached to it because of the attendant circum- stances under which it was given. At the hearing herein, Galloway explained the omission from his statement of Frazier's name as foreman because he was known to him only as Clyde; and affirmed that Frazier also was a supervisor despite his omission from his state- ment. His testimony is credited based on his demeanor, his statement to the contrary notwithstanding. 5 Other testimony identified at least three employees, Frazier, William Baggett, and Cronnie Reden Still as members of the maintenance crew 8 The question was obviously leading, and merits the probative weight accorded to that type of question. LIFETIME DOOR COMPANY 323 C. The alleged violations of Section 8 (a) (1) The complaint alleges that Respondent through Frazier interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section f7 in viola- tion of Section 8(a) (1), by threatening them with loss of their jobs on August 11 and 12 because they had given testimony under the Act. The evidence concerning these threats is as follows: Employees Willie Rice, Jr., Willie Galloway, and Anderson Walker each testified at the prior Board hearing which was held in Orangeburg, South Carolina, on August 10 and 11. They returned to work the day after they testified and Frazier engaged in conversation separately with each of them as follows: He asked Rice whether he had been to Orangeburg, and after being told that he had, Frazier said "they tell me you went over there and made everybody's business bad," to which Rice replied "I hadn't made nobody's business bad, they made their own business bad " Galloway was asked why he wasn't at work and whether he was sick. Not understanding what Frazier meant, Galloway made no reply and nothing further was said between them. He asked Walker whether he was going to do a good job now, and also commented to him, "you all went up yonder yesterday." 7 Conclusions' I find that Frazier's conversations with Rice, Galloway, and Walker, as related above, contain no interference, restraint, or coercion of these employees in the exer- cise of their statutory rights, which would constitute unfair labor practices in viola- tion of Section 8 (a)(1). Acordingly, I shall recommend that the allegations in paragraph 7 of the complaint be dismissed. D. The alleged violations of Section 8(a) (3) and (4) 1. The warning notice given to Galloway The following warning notice signed by Frazier was given to Galloway: August 19, 1965. Notice to Willie Galloway: Warned twice about allowing doors to go into feeding saw on # 1 machine without holding doors against the guide fence, causing doors to go into the saw at an angle and raining , the door. Warnings were issued on August 13, 1965, by his foreman, Benjamin Hare and on Monday , August 16, 1965, by Clyde G. Frazier, substitute foreman at that time. Clyde G. Frazier, Foreman. 'At all times material herein, Galloway. operated a trim saw, which cut down and smoothed off the sides and ends of doors after they were inserted into the machine. In feeding the doors into the machine, they had to be held against the guide fence until caught by the "hold down" (rubber strips) and run through the saw. If a door was not held against the guide fence , or improperly inserted into the machine, the "hold down" failed to catch it, and as a result the door would be thrown back in a-ruined condition with a gash cut in one side. On Saturday about a week after Galloway testified at the prior Board hearing, and while he was operating the trim saw, it began to throw back doors in a gashed condition. Frazier, who observed what was happening, asked Galloway what caused the trouble. When Galloway replied that he did not know, Frazier examined the machine, saw nothing wrong, and told him it was his fault and had to stop. The following Saturday, Frazier handed Galloway the warning notices and told him if he had one more (ruined door), he would be let go. The following Monday, after Hare returned from his vacation, the trim saw again began to throw back doors being fed into it by Galloway. Hare, thereupon, stopped him and asked what was wrong. Galloway looked into the machine' and noticed that certain rubber strips, which caught the doors when inserted into the machine, were missing. Hare then instructed him to obtain rubber strips and to install them in the machine. There- after, he had no further trouble in operating the trim saw, except for one door being 7 The above findings are based on the testimony of Rice, Galloway, and Walker, respec- tively. Frazier denied talking to any of them about union activities 8 Galloway had never heard of any other employee receiving a warning notice. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thrown back and gashed. Prior to receiving his warning notice, every 3 or 4 days a door had been thrown back in a gashed condition during his operation of the trim saw.9 Conclusions General Counsel contends that the warning notice was given to Galloway because he testified adversely to Respondent at the prior Board hearing, and also thereby indicated his support for the Union. It is undenied that Galloway had been having trouble with the trim saw, ejecting and gashing doors before he had testified at the prior Board hearing. However, he never received a warning slip nor had such a warning slip ever been given to any other employee. Yet, his first warning was given to him a day or two after he testified and, the second warning came a few days later. Official notice is taken of the fact that Galloway had testified on behalf of the General Counsel and the Union in tLe prior Board case. I find it unnecessary to resolve whether it was Galloway's negligent operation of the trim saw or a defect in the machine, which caused the doors to be ejected from the machine in a ruined condition. In view of the relatively close time sequence between his testimony and the warnings; the fact that no warning was ever given to Galloway prior to his testimony although he had been previously experiencing the same difficulty in operating the trim saw; the fact that no warning notices had been previously issued to any employee; and the fact that he testified on behalf of the General Counsel and in support of the Union in the prior Board case, I find that the warnings were retaliatory measures, taken because he testified at the prior Board hearing, and were calculated to discourage his union activities. Accordingly I con- clude that Respondent's action in issuing the warning notice to Galloway and threatening to discharge him if he ruined another door in the operation of the trim saw violated Section 8(a)(3) and (4) of the Act. 2. The discharge of Walker Walker began working for Respondent in September 1963. In February 1964, Martin gave him a 10-cent-an-hour wage increase in recognition of his good work and told him to keep it quiet.1° Walker testified at the prior Board hearing on behalf of the Union." Walker was discharged on August 20 following his involvement in three incidents while at work, in which he was blamed for damaging some doors, breaking his tow motor, and flooding part of the plant as the result of breaking off a sprinkler system valve. a. The damage to the doors On August 19, while moving caul boards on a tow motor from one department to another in the plant, Walker knocked over several doors which were stacked near the mortise boring machine, awaiting final processing on that machine for the hinges and dooiknobs. The testimony concerning the extent and severity of the damage to the doors is in conflict, ranging from 2 to 10 doors and from minor to serious dam- age. As a result of this accident, a notice signed by Walker's supervisor, Willie McCann, was put in Walker's file citing him for carelessness in operating his tow motor. O No evidence was presented relative to the first warning mentioned in the warning notice, and only Galloway testified with respect to the facts involved in the second warning. 10 Martin admitted the raise, and that it was not given plantwide, but failed to recall whether he made the comments attributed to him by Walker in connection with the latter's good work and his request to keep quiet about the raise. 11 Respondent stipulated that Walker testified at the prior Board hearing on behalf of a party which was adverse to Respondent. I also take official notice of the fact that he testified adversely to Respondent concerning its motivation in the discharge of another employee In violation of Section 8(a) (3) ; and that other testimony indicated he had signed an authorization card designating the Union as his collective-bargaining representative Willie McCann, who was discharged by Respondent on August 21, and prior thereto was Walker's foreman, testified reluctantly on behalf of the General Counsel that Martin had told him some time before the prior Board hearing that he (Walker) favored the Company against the Union. LIFETIME DOOR COMPANY 325 b. The damage to Walker's tow motor Walker testified that about 8 a.m. on the following morning, he noticed oil leak- ing from his tow motor 12 and brought it into the maintenance shop where he and Cronnie Reden Still, a maintenance employee, checked the tow motor, found oil leaking from a hole in a rubber hose, and left it in the shop for repair. Still testi- fied on behalf of the General Counsel that Billy (Baggett), a coworker in mainte- nance, removed a small iron piece from Walker's tow motor that morning and showed it to him. Frazier testified that during that morning while on the way to order a new iron part for Walker's tow motor, he saw Walker, asked him what had happened, and was told that he did not know. Frazier, however, admitted that he had not questioned any of the other employees who could have used Walker's tow motor as to how it sustained the alleged damage. Martin testified that during that morning, Frazier had shown him a piece of iron, which had been broken off Walker's tow motor, and told him they had to order some parts for it; and that the repairs, including the new parts, cost $15 or $18, and the tow motor was out of use for 4 days. Based on the demeanor of the witnesses to this incident and the sequence of events, I credit the testimony to the effect that a small iron piece had been broken off (the lift shaft) of Walker's tow motor. E. The broken sprinkler system valve and water damage Walker testified further that during that afternoon he was stocking machines and unloading car boxes when he was called by McCann and told to hurry and get him some bundles of core 13 which were on top of a stack of core bundles about 12 feet high; and that while following McCann's directions in operating a tow motor 14 to lift the bundles, one bundle on top of the stack tilted and fell against some other bundles, which, in turn, fell against and broke a sprinkler system valve located nearby, causing water to spray from the break and inundate the immediate area (about 10 by 15 feet) to the depth of a shoe sole before the water was turned off at an outside valve. McCann testified that he just walked up to Walker to give him a hand when he saw him coming under the bottom of five bundles of core (with his tow motor) and they began to tilt; that he yelled to him to stop but may not have been heard, that the bundles fell and knocked the valve off and water began to spray; that Walker left the area immediately and did not reappear for 5 or 10 minutes after being sent for to help clean up the mess; and that he (McCann), Frazier, and employee Philip Rice, joined soon after by Walker, began removing the bundles of core (about 30 to 40) 15 to a dry area. Based on the demeanor of the witnesses, McCann's testimony is credited as hereinabove related. Martin appeared at the scene upon being notified of the accident, and after hear- ing Walker's version of how it occurred, blamed it on him because he had been operating the tow motor. Shortly thereafter, Walker was called to Martin's office, where, in the presence of Frazier, Martin showed him a piece of iron and stated that he (Walker) had broken it off his tow motor that morning. Walker denied breaking off the iron piece, remonstrating that no one said anything to him about it that morning, and claimed that the tow motor had only a leaking oil hose. Martin also accused Walker of disregarding instructions given a month before not to stack bundles of core near the sprinkler system valve. Walker denied stacking the core at that place and claimed that he had only been removing it.is After referring to the tow motor damage and the sprinkler valve, Martin told Walker that he could not have anyone wrecking his plant. 12 According to Walker he used this tow motor most of the time but occasionally it was used by the dock, night watchmen, or a maintenance man 13 Core is corrugated cardboard used as fillers in plywood doors. 16 A spare tow motor was then being used by Walker 15 Some of the core was saved and used thereafter for its original purpose as fillers in doors ; some damaged core was subsequently used as separators in packing doors, some core was damaged beyond any use and thrown away, and the balance remained at the plant (condition not shown). 1° There is no evidence indicating that Walker had placed the come near the sprinkler system valve, and Walker's testimony that employee Philip Rice placed it there was not controverted 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following this discussion in Martin's office, Walker was requested by Martin to wait outside while he and Frazier remained in his office. About 20 minutes later Walker reentered the office pursuant to Martin's request and was given two checks, one of which was a regular paycheck, and discharged. In support of his contention that Walker received disparate treatment when dis- charged, General Counsel adduced uncontroverted testimony from employee Philip Rice, to the effect that on one occasion he had run his forklift into 50 doors, ruin- ing 4 of them, but that Gilbert, the Company's president, who saw the accident, said nothing, and he was not disciplined in any manner because of it. Employee Willie Rice also testified without contradiction that about 6 months before the Board's prior hearing he saw two women employees, who were pushing 50 doors on a track, upset the load, damaging about 10 to 15 doors which he repaired, and that Foreman Hare, who witnessed the accident, admonished the women to be more careful but gave them no warning slip nor did he threaten to fire them if it hap- pened again. Conclusions General Counsel contends that Respondent became disillusioned with Walker after learning of his union activities at the prior Board hearing, and discriminatorily discharged him, using his alleged accidents as a pretext. Respondent asserts that he was discharged as a necessary disciplinary measure because he disobeyed orders, caused damage due to his negligence, and disregarded his responsibility and duty in leaving the scene of the accident involving the sprinkler system valve. It clearly appears that Respondent was aware of Walker's union affiliation and support at the time he was discharged. However, it is undenied that within a period of 2 days Walker was involved, or accused of being involved, in three mishaps. Although General Counsel attempted to depreciate the extent of the damage caused by Walker's overturning of several doors on August 19, Respondent in good faith believed that his negligence caused the damage and the record does not absolve him of that responsibility. As for the tow motor damage, Walker denied responsibility for breaking the lift shaft and admitted only that oil was leaking from a hole in an oil hose, but he offered no explanation to account for that damage. As related here- inabove, Walker's tow motor sustained the alleged damage to its lift shaft. I find further that Respondent in good faith believed that he was responsible for causing that damage, and that there were reasonable grounds upon which to base that belief, even if such responsibility is not sustained by the preponderance of the evidence. With respect to the broken sprinkler system valve and water damage - to the core, Walker attempted to impute at least some of the blame to McCann's directions, and at the same time sought to minimize both the magnitude and importance of the accident. I find that Respondent in good faith believed Walker was solely responsible for it, and that, in fact, he was in some measure, if not entirely, the cause of it. An employer may discharge an employee for cause or no cause at all provided it was not for union membership or activity. Neither does such activity confer immunity from discipline nor insulate an employee from discharge for nondis- criminatory reasons. As the Board stated in Thurston Motor Lines, Inc.,17 "Nor is it permissible that we substitute our judgment for the Respondent 's business judg- ment as to the relative desirability of retaining one employee in preference to another. It must be established , rather, that the Respondent's judgment was influ- enced by protected activities." As long as the actual reason is not discriminatory, the discharge must be upheld regardless of its soundness or wisdom or severity. Nor does an employer's general hostility to unions , without more, supply an unlawful motive as to specific discharge. An inference that a discharge of an employee was motivated by his union activity must be based upon evidence , direct or circumstan- tial, not upon mere suspicion, and the burden is upon the General Counsel to show by the preponderance of the evidence that the unlawful motive was discriminatory and did, in fact, result in the discouragement of union membership . N.L.R.B. v. South Rambler Company, 324 F.2d 447 (C.A. 8). Even assuming, as General Counsel contends , that Respondent was greatly angered upon discovering at the prior Board hearing that Walker was prounion after having been led to believe otherwise , it, however, does not necessarily follow that Respondent was thereby motivated to discharge him. A large number of employees testified adversely to Respondent at the prior Board hearing , yet Walker, who took no leading part in the union organizing campaign , was the only employee 17149 NLRB 1368. LIFETIME DOOR COMPANY 327 singled out for discharge. Moreover, as appears hereinabove, Respondent's belief that Walker was responsible for three accidents which occurred within 2 days is based on cogent grounds. I find it reasonable to conclude that an employer would be sufficiently provoked by a succession of such events to take drastic and summary action, and that Respondent did so herein. While General Counsel showed that previously three employees, each of whom was involved in an accident, were neither penalized nor reprimanded, it is pertinent to note that Walker was dis- charged after his third mishap. I find no comparability between Walker's circum- stances and those of the other employees, which would establish disparate treat- ment accorded to Walker. I accordingly conclude that General Counsel failed to establish by a preponderance of the evidence that Respondent was motivated to dis- charge Walker because he testified at the prior Board proceeding or on account of his union activities, and I shall recommend that the allegations of the complaint relative to the alleged Section 8(a)(3) and (4) violations involving Walker be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade and traffic among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW In view of the foregoing findings of fact, and upon the entire record in this case, I make the following conclusions of law: 1. At all times material herein, the Union has been a labor organization within the meaning of Section 2(5) of the Act. 2. At all times material herein, Respondent has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating with respect to the tenure of employment of Willie Gallo- way, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By issuing a discriminatory written warning to employee Willie Galloway, because he testified at the prior Board proceeding, Respondent has engaged and is engaging in unfair labor practices in violation of Section 8(a)(4) of the Act. 5. By the foregoing conduct, Respondent has interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent has not engaged in the unfair labor practices insofar as the com- plaint alleges violations of Section 8(a)(1), (3), and (4) not specifically found herein. THE REMEDY In view of the findings and conclusions set forth above, that Respondent has engaged in an unfair labor practice defined in Section 8(a) (3) and (1) of the Act, I shall recommend that Respondent be required to cease and desist therefrom and take certain affirmative action as provided in the Recommended Order below, which I find necessary and appropriate to effectuate the policies of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Lifetime Door Company of Denmark, South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local Union No. 3135, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or in any other labor organization, by discriminating with respect to the tenure of employment of its employees, or by discriminating in any other manner with regard to their hire or any other term or condition of employment. (b) Issuing warning notices to its employees because they had testified at Board proceedings. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Withdraw and delete from its personnel records the discriminatory warning notice given to Willie Galloway. (b) Post at its plant at Denmark, South Carolina, copies of the attached notice marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Direc- tor for Region 11, after being signed by an authorized representative of Respond- ent, shall be posted immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps Respondent has taken to comply herewith.19 I FURTHER RECOMMEND that the complaint be dismissed insofar as it alleges viola- tions of the Act not specifically found herein. is In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United 'States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 191n the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL withdraw and delete from our personnel records the warning notice given to employee Willie Galloway. WE WILL NOT discourage membership in or activities on behalf of Local Union No. 3135, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by discriminating with respect to the tenure of employment of our employees, or in any other manner discrimi- nating against them in regard to their hire, or any other term or condition of employment. WE WILL NOT issue warning notices to our employees because they had testi- fied at Board proceedings. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named, or any other labor organization, to bargain col- lectively through representatives of their own choosing and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities. All our employees are free to become or remain, or to refrain from becoming or remaining members of any labor organization. LIFETIME DOOR COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. LECKIE SMOKELESS COAL CO. 329 If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina 27101, Telephone 723-2911, Extension 302. Leckie Smokeless Coal Co., et al.1 and United Mine Workers of America, Petitioner. Case 9-RC-6572. August 5, 1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer William C. Mittendorf. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Following the hearing and, pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, by direc- tion of the Regional Director for Region 9, this case was trans- ferred to the National Labor Relations Board for decision. Briefs have been filed by the Employer and the Petitioner. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Brown and Jenkins]. Upon the entire record in this case, including the briefs filed by the parties, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. The Petitioner seeks to represent a unit of all production and maintenance employees employed in and around the several mines, haulageways, and tipple facilities located on the property owned and controlled by Leckie Smokeless Coal Co., herein referred to as i Others listed in the petition as "Employers" are as follows Marvin Hunter, d/b/a Browns Creek Coal Company ; Glen E. Coulter, d/b/a Coulter Coal Company ; Floyd Daniels, d/b/a Daniels Coal Company ; Junior Hill, d/b/a Hill Coal Company, w. F McClung, Jr, d/b/a Katrina Coal Company ; Richard Rose, d/b/a Rose Coal Company ; Travis Tincher, d/b/a T & T Coal Comnpany ; Ben Coal Company, and B & B Coal Company These "Em- ployers" will be referred to herein as operators. The latter two operators ceased opera- tions after the petition was filed and did not appear at the hearing After the petition was filed, operator 'Ray E Smith, d/b/a Ray E Smith Coal Company, commenced operations under a contract identical to that of the other operators, and an- other operator, identified only as the Bostic Coal Company, entered into a contract as a stripper and trucker. These two operators were not included in the petition or served with a notice of the hearing, and they did not appear at the hearing However, in view of our disposition hereinbelow, we find that these operators did not need to be named as parties to this proceeding 160 NLRB No. 31.