Fanestil Packing Co.,, Inc.

FANESTIL PACKING CO. 217 Fanestil Packing Company, Inc. and Amalgamated Meat Cutters & Butcher Workmen of North America , Local 340, AFL-CIO. Case 17-CA-2959. April 28, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 1, 1967, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommended that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed a brief in support of the Decision. 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. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. and 28, 1966, on the complaint of the General Counsel, as amended, and the answer, as amended, of Fanestil Packing Company, Inc., herein called the Respondent.' The complaint alleges violations of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. The parties waived oral argument and briefs filed by the General Counsel and Respondent have been carefully considered. During the hearing the Trial Examiner reserved rulings on several motions including the Respondent's motions to dismiss the complaint. These motions are disposed of in accordance with Findings and Conclusions herein set forth. Upon the entire record,2 and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a Kansas corporation , maintaining its principal place of business at Emporia, Kansas, where it is engaged in slaughtering animals and processing meat. Respondent annually, a representative period, has an inflow, from points beyond the State of Kansas, of goods, products, and materials valued in excess of $50,000, and Respondent annually ships to points outside the State of Kansas goods, products, and materials valued in excess of $50,000. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of North America, Local 340, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. ' In affirming the Trial Examiner' s dismissal of 8(a)(1) allegations based upon alleged threats and other reprisals, we do not adopt his observation that the testimony of General Counsel's witnesses in this regard was implausible simply because the alleged incidents did not occur at a time when a union was actively engaged in organizing the employees On the other hand, to the extent that his dismissal of these and other allegations in the complaint was based upon credibility determinations, we nevertheless find, upon careful review of the record, that the Trial Examiner's credibility findings are not contrary to the clear preponderance of the evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, Inc , 91 NLRB 544, enfd. 188 F. 2d 362 (C A 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER. Trial Examiner : This proceeding was heard before me in Emporia , Kansas, on October 27 ' The charge herein was filed on June 28, 1966, and amended on July 20, 1966 The complaint was issued on September 1, 1966, and amended, at the opening of the hearing, on October 27, 1966 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issue raised by the pleadings and litigated at the hearing are whether the Respondent: (a) interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1), by threatening employees with loss of employment and other reprisals because of their membership in, and activity on behalf of, the Union, by Shirley Helmer, in February or mid-May 1966, or by E.E. Fanestil on April 23, 1966; or (b) whether Respondent's actions: (1) in requiring Leroy Britton to report to his supervisor each and every time he went to the restroom; or (2) requiring Britton to work while fellow employees were idle, in April 1966, and thereafter; or (3) the discharges, on June 25, 1966, of Leroy Britton, John Burdette, and Larry Truelove, and the failure thereafter to recall said employees; were in each or any instance discriminatorily motivated and unfair labor Oactices in violation of Section 8(a)(3) and (1) of the Act. Respondent, by answer, denies the commission of any unfair labor practice, acknowledges the discharges, but asserts that the discharges were for cause. I General Counsel' s motion to correct errors in the transcript is unopposed and is granted 164 NLRB No. 25 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Supervisory Personnel and Agents It is undisputed that Ed Fanestil, president, Shirley Helmer, supervisor of the sausage department, and Ruben Logbeck, plant manager, are agents of the Respondent and supervisors within the meaning of Section 2(11) of the Act. The complaint alleges, and the answer denies, that Earl Hollingshead is a supervisor of the beef room and Lupe Torres is supervisor in the boning room. Respondent contends these two individuals are leadmen and do not have supervisory capacity. The evidence relative to the duties of Hollingshead is next considered. Holhngshead has been employed by the Respondent for 20 years, and has been a leadman for 5 or 10 years, in the beef room. Hollingshead asserted that there were five or six employees in the beef room, which he described as being comprised of three rooms, i.e., a cutting room, where beef is broken down to quarters, rounds, rumps, steaks, etc., a processing room, and a chill room. Hollingshead's assertion that Logbeck is in charge of the beef room and makes work assignments is undisputed. Hollingshead acknowledged that he alternates with Logbeck every other Sunday, at which time, it may be inferred, Hollingshead was in charge of the six or eight employees who worked in the beef room for approximately 5 or 6 hours. The matter of Hollingshead's supervisory capacity is of importance only to the extent that Holhngshead advised Britton, alleged discriminatee, that Britton was to report to Hollingshead when Britton left his work station. In view of Hollingshead's credited testimony that these instructions were pursuant to instructions Hollingshead received from Logbeck, an acknowledged supervisor, I find it unnecessary to determine whether Hollingshead is a supervisor within the meaning of Section 2(11) of the Act. I find it unnecessary to determine whether Torres was a supervisor, as contended by the General Counsel, or a leadman, as contended by Respondent. General Counsel asserts Torres had knowledge of the union activities of employees, and thus seeks to impute such knowledge to Respondent. I find this assertion untenable, for reasons explicated infra. C. Background and Sequence of Events Pursuant to a petition for election, filed by the Union, the Board conducted an election, among Respondent's production and maintenance employees, on July 28, 1965. A certification of the result, issued on August 31, 1965, reflects 82 eligible voters, of whom 32 voted for and 48 against designating the Union as the collective-bargaining representative.3 There is no evidence in this record of any prior charge of unfair labor practices having been filed against Respondent. It is alleged that the termination of Leroy Britton, John Burdette, and Larry Truelove, all occurring on June 25, 1966, were discriminatorily motivated. As a prerequisite to a finding of discrimination, it is essential to find from the evidence that the dischargees were, in fact, engaged in union or other protected activities, and evidence from which it can be reasonably inferred that Respondent had knowledge of these activities. Since the existence or absence of such evidence is crucial it is first considered. Truelove was initially employed on February 4, 1966, in the sausage room, as a stuffer, under the supervision of Shirley Helmer. Britton was initially employed by Respondent on September 7, 1965, in the lard room, and in March 1966 was transferred to the beef room, at his own request, and thereafter was under the supervision of Logbeck. Burdette was initially employed by Respondent in January 1959 and worked in what is identified as the boning room and killing floor, under the supervision of Dale Davis, plant superintendent. It is thus patent that neither Truelove nor Britton were employed by Respondent at the time of the 1965 election. The record is silent relative to the union activity, if any, of Burdette at that time. Glen McLean, International representative of the Union, credibly related that he and Nate Masi, an International organizer, met with David Cedillo, an employee of Respondent, on June 7, 1966, and gave him union authorization cards, for the purpose of obtaining signatures.4 While Cedillo asserted that he obtained the union authorization cards, from the union representatives, on June 7, it is undisputed that he did not obtain any signatures, on such cards, from any employee, with the possible exception of the three named discriminatees, prior to June 25, on which date the discharges were effectuated. While the union authorization cards of Truelove, Britton, and Burdette, each contain the date of June 14, 1966, as the ostensible date of signature, I am unable to find from credible evidence of probative value that these cards were, in fact, signed on that date, or any other date prior to June 25, 1966. Similarly, I find the evidence relative to the place, or places, where these cards were signed, according to the testimony of General Counsel's witnesses, is lacking in consistency, thus not credible. This evidence is next considered. Cedillo, an employee of Respondent for 13 or 14 years, on the killing floor, initially asserted that he obtained signatures on the cards "on June 7," then asserted it was "a couple of day"s" after June 7, then asserted that he was not certain of the date, then was not certain if it was a day or two prior to the following Tuesday, June 14. Later, Cedillo was asked when he turned the cards of the three individuals involved herein over to the Union and asserted, "they got laid off on a Saturday, and the following Tuesday we had a meeting and that is when I turned the cards over to them." His attention was called to the fact that he had earlier testified that he had a meeting with McLean and Masi, on June 14, and advised the alleged discriminatees herein that if he had their cards at that time he would turn them in to the Union. Cedillo later asserted that he did not have the cards signed up then, inferentially referring to his meeting with the union representatives on June 14. Cedillo then asserted "they gave me the cards that evening and later on in the evening is when I got a hold of them," inferentially again referring to June 14. In conflict with the testimony of Cedillo, as to the time he obtained the cards, Truelove asserted that he signed the card at breaktime, at 10 a.m., at the plant, on June 14, and gave it, inferentially at that time, to Cedillo. Britton, in reference to the signing of the union authorization card, asserted, "they were signed after working hours on the J I have taken official notice of Case 17-RC-4683 was any union activity other than Cedillo's solicitation of 4 McLean was not questioned relative to the time any cards signatures, discussions among employees set forth infra, and were returned Masi did not appear as a witness There is no Cedillo's meetings with the union representatives, prior to the evidence that anyone other than Cedillo distributed any of the discharges herein. union authorization cards at Respondent's plant, or that there FANESTIL PACKING CO. parking lot of this Rebel's down here on Second Street." He then asserted he did not sign his card at the same time as Truelove and no one other than Cedillo was present when he signed his card. Burdette, at variance with Cedillo, asserted that he signed his card at noon, in front of Modern Market, inferentially a location away from the plant, at which time only Cedillo was present. Cedillo, whose first meeting with McLean, after June 7, was on June 14, was self-contradictory when asked what cards he turned in on June 14. At one point in his testimony he asserted, "those were the only ones I had signed up until then, and I turned in mine, and it had to be those other three guys. They were the only ones I had signed up." Later, Cedillo was asked if he turned in all four cards at the same time, to which he responded, "No. I turned mine in and then some, so I had to give them the three." Cedillo, who asserted he talked about card signing with half of an estimated total of one hundred employees at the plant, was similarly confused and self-contradictory as to the number of cards signed. Cedillo, having first asserted after the charges were filed, on June 28, "a lot of the guys said they would not sign any of the cards, they would rather wait until after the hearing was over," later asserted he did not obtain any signatures to cards other than his and the three discriminatees, prior to the discharge date of June 25, "but a couple of days afterward, they started pouring in. I think it was June 28." Respondent, in its brief, appropriately calls attention to the fact that the initial charge, filed on June 28, 1966, asserts the discharge of Burdette as violative of the Act, and makes no reference to Truelove and Britton. It was not until July 20, when the amended charge was filed, that the names of Truelove and Britton were added as alleged discriminatory dischargees. There is no evidence that any of the dischargees engaged in any union activity, other than asserted conversations between themselves, during some of which the dischargees assert other employees were present. This evidence is considered infra. D. Interference, Restraint, and Coercion The evidence relative to acts and statements of Respondent's supervisory personnel, alleging conduct violative of provisions of Section 8(a)(1) of the Act, is summarized under the names of the particular supervisor specified in the complaint and testimony. Shirley Helmer It is alleged that in early February and in mid-May 1966 Helmer threatened employees with loss of employment or other reprisals because of their membership in, and activity on behalf of, the Union. Truelove asserted that 3 or 4 days after he was hired, in early February 1966, his supervisor, Helmer, was showing him how to make sausage. Truelove asserted that he (Truelove) explained that on the last job he had they were trying to organize truckers and that Helmer advised him, 5 Meddows did not appear as a witness. 6 On cross-examination Truelove was asked to place the time of this conversation and asserted it was on June 21 Asked how he established the date, Truelove responded, "Like I said, dates come easy" Asked by Trial Examiner if he had not earlier asserted this conversation occurred in the middle of May, Truelove responded, "I believe I did " Truelove then asserted June 21 did not have anything to do with this conversation 219 "Best you forget that Larry, you talk about union around here and you will be looking for another job." Truelove asserted that Helmer then changed the subject. Truelove asserted that Jack Meddows, inferentially another employee, was present during this conversation.5 Helmer denied having any conversation relative to the Union with Truelove in February. On this conflict I credit Helmer. Truelove's demeanor was unimpressive and, I find, his assertion implausible. No union activity at Respondent's plant was pending or contemplated, insofar as this record reveals. I find such an isolated conversation implausible in the fight of this record. Truelove asserted that he had a further conversation with Helmer on an occasion when they went fishing. Truelove asserted variously that it was in mid-June, or mid-May, or a month before June. Truelove asserted, "I asked him when was the last union there and voted on and when could we get it back." Truelove asserted that Helmer responded, "Larry, you best forget it," and then changed the subject.6 Helmer acknowledged going fishing with Truelove, at noon, in either May or June, but denied that the subject of the Union was discussed. I credit Helmer, for the reasons stated relative to the alleged February incident. Burdette, who worked in the boning room and was not under the supervision of Helmer, asserted he had a conversation with Helmer about the Union at Fred's Derby on one occasion. Asked to state the time, Burdette responded, "I think it was just about in June, I believe, or March-no-I believe it was just about 2 weeks before I got fired, I believe now I am lousy on remembering dates." Asked what was said about the Union, Burdette responded, "I told him I was strictly union all the way and there was just no two ways about it, I was union." Asked what Helmer's reaction was, Burdette responded, "Well, he just wouldn't say one way or the other. He wouldn't commit himself." Helmer acknowledged there were two or three occasions when he found crowded conditions at Fred's Derby, and if Burdette was in a booth Helmer sat at the same table, or vice versa. Helmer had no recollection of anything being said about the Union in March or June. On this conflict, I do not find the recitation of Burdette credible. Finding no credible evidence of probative value that Helmer threatened an employee with loss of employment, as alleged, I will recommend a dismissal of that portion of paragraph V of the complaint. E. E. Fanestil It is alleged that Fanestil, president of Respondent, threatened employees with loss of employment because of their union activity on April 23, 1966. Britton, alleged discriminatee herein, related that he accompanied his wife to the hospital, for the anticipated arrival of a baby, on Wednesday, April 20,1966. He did not report to work or report to anyone at the plant his reason for absence the following Thursday and Friday. Britton asserted that he had previously advised Superintendent Davis of his anticipated absence.7 On Saturday, April 23, r Britton, asked how long he had been absent , asserted, "It was a Wednesday afternoon right after I clocked out, my wife was in the car, see, and I took her from there to the doctor and straight to the hospital, I was having this last baby " Thereafter, asked if he had reported the fact he would not be in, Britton responded, "Well, I can't answer it thataway because I think I did tell Davis and besides he knew this baby was due because I had told him previous 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he went to see President Fanestil, to find out if he still had a job. According to Britton, he advised Fanestil that he (Britton) had heard that there were rumors that he had been working at Armour's and the Interstate Bakery, and he also advised Fanestil that these rumors were untrue, that he had been home taking care of his children because of his wife's temporary confinement in the hospital. Britton asserted that Fanestil then stated Truelove, Burdette, Fulhart, Britton, and others were stabbing him in the back "by getting our heads together down there at break assembly period, and he didn't like that because he figured he was fair giving me a job and trying to treat me right, and so he said I was just stabbing him in the back with these gatherings , and if this didn't stop he would fire us. He said he couldn't fire us then on account of the work and then I believe that I told him that I would be in on a Monday, the following. He told me I just as well leave there, that he did not need me or my kind, that he was running this place before I was employed and that he believed that he could go on doing it without my help, so I got up and left, walked out." Britton acknowledged that he reported to work on the following Monday, April 25.8 Fanestil denied that the Union, and inferentially union activities, were mentioned in his conversation with Britton in April. Fanestil acknowledged advising Britton that he did not like the reports Fanestil had received relative to Britton's activity during what is referred to in the record as the "Fessler incident."9 There were no union activities in the plant on April 23, as more fully set forth supra, under Background, therefore I find Britton's recitation of Fanestil's alleged threat incredible and implausible. Accordingly, I will recommend dismissal of the allegations of paragraph V of the complaint relative to E.E. Fanestil. Alleged Discriminatory Working Conditions It is alleged that, commencing in April 1966, Respondent required Britton to report to his supervisor each and every time he went to the restroom, and also required him to work all the time while fellow employees were idle. Such conditions are alleged to have been discriminatorily motivated. Respondent does not deny the reporting requirement, but does deny the allegation that it was discriminatorily motivated. Britton asserted that after his conversation with Fanestil,on April 23, and inferentially during the same month, Hollingshead advised Britton that he should report to Hollingshead each time he left to go to the men's room. Britton asserted he asked other employees if they were subjected to a similar requirement, and upon ascertaining 8It appears undisputed Fulhart, who did not appear as a witness, left the Respondent's employ within a few days after this incident. 9 Fessler had absented himself from work , without reporting a reason for his absence , on several days preceding Tuesday, April 19, 1966 When Fessler reported on Tuesday morning his timecard had been taken out of the rack and, upon his inquiry, Superintendent Davis advised Fessler he had picked it up Fessler walked out Fessler returned to the plant during the 10 o'clock break period and made some representation to Burdette and Britton relative to confronting Davis, in Respondent's parking lot, during the lunch period Morrow, an employee in the beef department where Britton worked, credibly related that he heard Fessler assert that he was going to talk to Davis and , if necessary, would fight him to find out the reason why he was discharged that they were not, he asked Hollingshead why he was supposed to report to him and Hollingshead asserted he did not know. According to Britton, upon Hollingshead's inquiries whether he had any ideas, Britton advised Hollingshead that Fanestil had told him previously "that he was looking for a reason to fire us." Britton denied that he had been reprimanded by Logbeck for spending too much time in the restroom, then acknowledged that he had been reprimanded for being out of the beef room too much. Logbeck, who was in charge of the beef room, credibly related that on several occasions he went to the beef room and asked Hollingshead where Britton was and Hollingshead responded "out." Thereupon, Logbeck advised Hollingshead that if Britton was abusing his privilege of going to the restroom, Hollingshead should advise Britton that Britton should advise Hollingshead where he was going, when he left the beef room "so at least I will know where to find him when I want him." Logbeck denied having similar trouble with any other beef room employee. Hollingshead corroborated the statements of Logbeck relative to the excessive absences of Britton. It is undisputed that there was no union activity, in Respondent's plant, in April 1966, at the time this instruction was issued to Britton. I find no evidence upon which a finding of discriminatory motivation could be premised, accordingly, I will recommend a dismissal of this allegation of the complaint. George Rodriguez was employed by Respondent, as a laborer in the beef room, from June 15 to September 30, 1966. Rodriguez asserted that he never observed Hollingshead performing any duties, or participating in the work. Rodriguez asserted that Hollingshead or Logbeck, "would always most of the time, call on Mr. Britton to do the work while I would just still be idle." Rodriguez asserted that he, Dean Morrow, and Danny Hamman would be standing around idle, while Britton was always called on first and transferred from one job to another, while the others stood idle. Rodriguez then asserted that the three named would stand idle approximately three- fourths of each day, doing nothing, while Britton was kept busy. Frederick Rodriguez, brother of George, was employed by Respondent commencing October 19, 1964, and was still employed at the time of his testimony, primarily as a beef slaughterer on the kill floor. Frederick asserted that sometimes, when his work is finished, he is transferred to work in the beef room. Frederick asserted that a couple of months prior to the discharge of Britton when they assigned Frederick to a harder job, and saw Britton doing nothing, they would put him on the harder job and transfer Frederick to something easier. Frederick then explained, "If I was putting up beef and Leroy (Britton) was wrapping, he would have me go put up the beef and have him wrap it up." Britton and Burdette both stated that they would be present to make certain no one interfered . Morrow promptly advised Holhngshead. Hollingshead related that Morrow advised him that Fessler was going to beat up Davis at the noon hour , "if he didn't give him his job," and that Button and Burdette were going to stand by, "and anybody else better hadn't step in." Hollingshead asserted that he immediately reported the threat, involving Davis, to Davis, Logbeck, and Donald Fanestil. However, Hollingshead asserted that he did not tell him of the threat of Britton and Burdette at that time Davis at variance with Hollingshead, asserted that Hollingshead did report that Burdette and Britton had stated that if anyone tried to help Davis they would get in on it It is undisputed that Fessler did confront Davis at the lunch hour, and that other employees , including Burdette and Britton, were witnesses to the confrontation. FANESTIL PACKING CO. I find the testimony of the two Rodriguez brothers incredible and implausible. Accordingly, I will recommend dismissal of the allegations of the complaint related to Britton's being required to work while others were idle. The Evidence Relative to the Discharges The evidence relative to the discharges is considered seriatim. Larry Truelove Truelove, whom I have found was hired on February 4, 1966, in the sausage room as a stuffer, was under the supervision of Shirley Helmer. Truelove acknowledged that on June 25, 1966, he was advised by letter, signed by President Fanestil, that he was being terminated for: "1 Insubordination; 2 Beligerant [sic] attitude; 3 Non cooperative attitude." Shirley Helmer credibly related that on Saturday, June 25, 1966, he advised Donald Fanestil10 that he had put up with Truelove about as long as he could. Helmer asserted that earlier in the same week Truelove was making the sausages too long and when Helmer called this to his attention, Truelove responded "he didn't give a damn how they looked." Helmer then ran some sausages, and later advised Truelove to "come back and run them," to which Truelove responded, "I am back." On the morning of the discharge, Helmer related that Truelove didn't show up until 18 minutes after 8, at which time Helmer found him on the kill floor. Helmer asserted that on several prior occasions Helmer had to go to get Truelove out of the restroom, that the rest of the help were advising Helmer that if Truelove could stay out in the restroom they could also. Helmer stated that on one or two occasions, when he reprimanded Truelove, Truelove advised him "if you don't like the way I do it, get somebody else to do it. I don't care if they do fire me."ii After his report to Ed Fanestil, on June 25, Helmer's report was verified by President Fanestil, who advised Helmer that Fanestil was not going to put up with the conduct reported. Truelove's assertions that the reasons specified in his termination notice were never discussed with him, and that he received no warning, to the extent that testimony implies that he was not reprimanded, on a number of occasions, by Helmer, is not credited.12 Leroy Britton Logbeck, who is in charge of the beef room, credibly related that on several occasions he recommended, to President Fanestil, that Britton be terminated because of his attitude toward his job, "and several incidents that he had come up that I just didn't approve of." Logbeck 10 Donald Fanestil , who appeared as a witness , is vice president and secretary of the corporation and the son of the president, and is actively engaged in the operation of the plant 11 Robert Kewley, another employee in the sausage department, corroborated this assertion of Helmer. Kewley related, "I have heard him [Truelove] say that he didn't give a damn if he was fired because he was fired before, and that was when we would go out and look for him and bring him back into work " I credit Kewley. 12 James Cazs , an employee in the sausage room , related an occasion when Helmer advised Truelove to wash the machine According to Cazs, Truelove advised Helmer to wash it himself Truelove's denial of this occurrence , and inability to remember it, and his evasiveness relative to whether, on occasions , Helmer had 221 related Britton's abuse of the privilege of going to the men's room and questionable absenteeism, from work, without a good excuse, as the reasons for his recommendations. Logbeck asserted that he considered Britton's work unsatisfactory in terms of output, asserting that on more than one occasion he called Britton to one side and asked him if he wanted to work. Respondent's letter of separation, dated June 25, 1966, specifies the following reasons for discharge: "1 Absenteisin [sic] without proper notice; 2 Habitual loitering in rest rooms; 3 Quality of work unsatisfactory; 4 Untidy appearance; 5 Threatening bodily harm and injury to plant Supt. (Re Fessler Case.)" President Fanestil, who issued the discharge notices, asserted that in the case of Britton the information resulted from his personal observations and reports that he had received from Superintendent Davis. Britton asserted that no one in the company ever discussed with him the deficiencies set forth in his letter of termination , other than Hollingshead's requiring that he report when he left his work station. Britton's demeanor and his studied effort to evade responding to questions relative to whether he had stated that he would jump in and help if anyone intervened in the confrontation of Davis by Fessler were unimpressive. 13 John Burdette Dale Davis has been plant superintendent for approximately 10 years. Davis also was supervisor in the boning room where Burdette was employed. Torres was promoted to leadman in the boning room in the spring of 1966. Davis asserted that because of a shortage of help he, personally, did a lot of work in the boning room to help, expedite the work. Davis described the work assigned to l Burdette as the boning of the necks of bulls in the morning and of the shoulders of hogs in the afternoon. Davis credibly related that on several occasions he advised Burdette that Burdette would have to keep up with the work. Davis related that on June 14, Burdette advised Davis that Burdette had received a telephone call indicating that a horse owned by Burdette had been injured and that he was going home to help doctor the horse. Davis asserted that Burdette did not request permission to leave but merely advised Davis that he was leaving. Subsequently, Davis entered this incident, as he had others, on Burdette's personnel record. Davis asserted that he recommended to President Fanestil that Burdette be terminated, by reason of this incident. Davis also asserted that he had previously recommended the discharge of Burdette. Davis identified entries on Respondent's personnel record of Burdette, on which Davis had made entries of absences, on various dates in 1966, where Burdette had failed to report a reason for his absence. to look for him when he was supposed to be on the job, and would find him somewhere else, were unimpressive and Truelove's denials of the episodes related by Respondent's witnesses are not credited 10 The testimony of Britton relative to a discussion of the Union in mid -Apnl, during a break period, at the plant , participated in by Truelove, Burdette , Jim Fulhart, who quit in April 1966 and did not appear as a witness , and Lester Neff, who did not appear as a witness, as well as Britton, to the extent it is asserted as background to prove Respondent's knowledge of the employees' union activities , I find has no probative value There is not a scintilla of evidence that anyone in management had any knowledge of the subject of the discussion . It is patent there was no union effort to organize Respondent 's employees at that time 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD President Fanestil's letter of June 25, 1966, to Burdette, specifies that termination was for the following reasons: "1 Beligerant [sic] unfriendly attitude; 2 Threatening bodily harm and injury to Plant Supt (Re Fessler Case); 3 Tardiness and absenteisin [sic]; 4 Lack of interest in job; 5 Substantial reduction in amount of work out put with total production considerably under capability." 14 Relative to the reasons specified in Respondent's letter, as grounds for discharge, Burdette acknowledged that Davis had asked him why he didn't keep up on the hog cut, asserting that this was 2 or 3 months prior to his discharge. Burdette asserted that he told Davis that George Rodriguez was too fast and he couldn't keep up with him. Burdette acknowledged that this was work he normally did between lunchtime and the afternoon break period. Burdette asserted that his last absence was 1 or 2 months prior to his being discharged. He acknowledged that he had not called the plant. When he returned to work, the following day, upon inquiry by Davis, he advised that he had been ill. When Davis asked why he had not called in he responded that he didn't have a telephone and didn't feel like going to the neighbors bothering them.15 Contentions of the Parties and Concluding Findings It is patent, and has been frequently stated by both the Board and the courts, that an employer may discharge an employee for any reason or no reason, and it is of no concern to the Board, unless there is evidence that such 14 President Fanestil identified a number of similar letters issued over his signature to other dischargees of Respondent between the dates of November 24, 1965, and February 17, 1966, to establish Respondent's practice , at the same time acknowledging that he did not issue such a discharge letter in every case 15 Burdette first sought to establish that Davis had some knowledge of the union activity in the plant, asserting that Davis was standing at a pop machine, about 20 to 25 feet away from where the conversation was taking place. Subsequently, Burdette acknowledged that he did not know if Davis had any knowledge of the union conversations which occurred in the plant Ultimately, Burdette acknowledged that there were "two or three" conversations relative to the Union during the break periods and lunch periods, over a period of "4 or 5 months " These conversations were confined to the three dischargees herein, with Neff participating in one such conversation and Fulhart, who quit in April, participating in another such conversation Burdette acknowledged these were the only union activities at the plant of which he had knowledge Burdette was thus self-contradictory, having earlier asserted that Lope Torres engaged in conversations with him relative to the Union "many times " Torres denied any knowledge that Cedillo was passing out union authorization cards in June 1966 Torres acknowledged that prior to the 1965 election Burdette gave Torres the impression that Burdette was for the Union Torres remembered Burdette saying something about the Union in 1966 but could not recall the time, and credibly denied advising anyone in management of the impression he had of Burdette's attitude toward the Union I also credit Torres' denial that either Britton or Truelove ever discussed the Union with him, except to the extent Torres acknowledged that Truelove had mentioned that Truelove had worked at Armour's, which was union I similarly find of no consequence Torres' acknowledgement that he attended a Mexican party one evening, with Truelove, at which a union representative was present It is obscure whether this occurred before Torres was made a leadman, in March or April 1966, or, in fact, whether it occurred after Truelove was discharged 16 I find of no consequence Truelove's asserted discussion with Torres, in June, that Truelove had been working in the evening at Armour's, that Truelove earned as much in 2 days at Armour's as he earned at Respondent 's plant in a week, and that Armour's was discharge was discriminatorily motivated. As a prerequisite, there must be a showing, by credible evidence of probative value, that the employee was engaged in union activities , and there must be evidence from which it can reasonably be inferred that Respondent had knowledge of such activity. General Counsel would rely, in part, on a conversation, in June, during which Cedillo advised Hollingshead that Cedillo had union cards if he wished to sign one. While, as General Counsel contends, Hollingshead was not questioned about this alleged conversation, I have found supra that Cedillo was not a credible witness. Even were I to credit Cedillo in this respect, the evidence does not reflect either activity by the discriminatees or Respondent's knowledge of such activity. General Counsel further relies on alleged conversations, at times when there was in fact no union activity, between Truelove and Helmer which I have found implausible.is Relative to Britton, General Counsel relies on the conversation between Britton and President Fanestil, on April 23, at which time there was in fact no union activity in the plant. General Counsel relies on Burdette's assertion that he talked to Torres about the Union in the break area in early June "many times." Burdette, I have found, was an unconvincing witness who acknowledged there were only two or three union discussions over a period of 4 or 5 months." union Torres worked in a different department Torres' admission that there was such a conversation is far short of establishing that Truelove was engaged in union activity at Respondent's plant, or that Respondent had knowledge of such activity The extent of Truelove's activity, insofar as this record indicates , was the signing of the union card, at a 10 a in break period Truelove's effort to place Torres as among those present when the Union was discussed at lunchtime is at variance with the testimony of Britton and Burdette and is not credited " Burdette's testimony in part was Q. You are saying that you, and Britton, and Truelove and Neff had other conversations of other matters of this union activity9 A Neff never got into it much I will just say that one time Q All right. You testified, then, that there were three of you, you, Truelove and Britton Is that the extent of the people who were in on these conversations about union activities on breaks 7 A That is what it wound up to be Q Just the three of you9 A Yes Q. How many of those discussions did you three have concerning union activities there on your break periods or lunch periods there at the plant9 A. I would say two or three Q This was over a period of how many months? A. Oh, I would say 4 or 5 months Q So in a period of 4 or 5 months, the three of you got together two or three times and discussed union activities and that is all the discussion that was at the plant, is that correct? A. That was all the discussion Q Of union activities at the plant? A. As far as I can remember, it was. Q Well, I want you to think carefully and see if there is anything else you want to tell us concerning that series of incidents A Well, just that-you mean just who was there? Q I just want to know who was there? A. You have already got that FANESTIL PACKING CO. I have found supra that Burdette's recitation relative to an alleged conversation with Helmer, at Fred 's Derby Restaurant , was implausible. Respondent correctly contends there is an absence of any evidence of antiunion animus on the part of Respondent. There is also an absence of any evidence that the discriminatees engaged in any union activities, or other than the signing of union authorization cards on a date uncertain. The signing of these cards , in at least the instances involving Britton and Burdette, was away from Respondent's plant. The most that can be said of the evidence is that the discharge of three employees , who purportedly previously signed union authorization cards, on the same day, raises a suspicion of motive . It has frequently been said that suspicion is not a substitute for the requisite credible evidence of probative value of discriminatory motivation. In these circumstances , since the burden of proof was upon the General Counsel, and he has not met his burden of proving by a preponderance of the evidence that the discharges of Truelove, Britton, and Burdette was discriminatorily motivated , I will recommend dismissal of 223 the allegations of the complaint which relate to Section 8(a)(3) of the Act. Upon the foregoing findings of fact, and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in activities affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Amalgamated Meat Cutters & Butcher Workmen of North America, Local 340, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in conduct constituting unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint be dismissed in its entirety.