American Building Maintenance Co. of California

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Building Maintenance Company of labor practices within the meaning of Section 8(a)(l) and California and Melvin Perdue. Case (3) and Section 2(6) and (7) of the Act.' 20-CA-4103 Respondent's answer denies the substantive allegations June 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 18, 1967, Trial Examiner Irving Rogosin issued his Decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in any unfair labor practices alleged in the complaint and recommending 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 sup- porting brief. The Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IRVING ROGOSIN, Trial Examiner: The complaint, is- sued August 22, 1966, as amended at the hearing, alleges that (1) in May 1966, Respondent instructed employees to deal directly with it and bypass the Union, their duly designated collective-bargaining representative; and (2) on about May 13, 1966, discharged Melvin D. Perdue and Andrew C. Lowry because of their union or other protected concerted activities, thereby engaging in unfair ' The charge was filed on June 3 and served on June 6 , 1966 Designa- tions are as follows- the Charging Party, Melvin D. Perdue , the Union, Building Service Employees Union , Local 77, AFL-CIO; the General Counsel , unless otherwise specified , his representative at the hearing, Respondent, the Company, or ABM, American Building Maintenance 166 NLRB No. 1 of the complaint, including those related to jurisdiction, the supervisory status of the named employee, and the commission of any unfair labor practices, but admits the status of the Union as a labor organization. Hearing was held on October 20, 21, 24, and 25, 1966, at Salinas, California. The General Counsel and Respondent were represented by counsel, afforded full opportunity to be heard, to examine and cross-examine witnesses, to in- troduce oral and documentary evidence relevant and material to the issues, to argue orally, and file briefs and proposed findings of fact and conclusions of law. Both parties declined to argue orally but reserved the right to file briefs. Respondent's Motion to Dismiss the com plaint, on the ground of failure to prove a prima facie case, made at the close of the General Counsel's case was denied. Pursuant to leave duly granted, both parties filed briefs on December 29, 1966. No proposed findings of fact or conclusions of law have been filed by either of the parties. Upon the entire record in the case, his observation of the witnesses, their attitude and demeanor while testify- ing, and the briefs of the parties, the Trial Examiner hereby makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, and Respondent's answer ad- mits, that, at all times material herein, Respondent has been a California corporation engaged in furnishing build- ing maintenance services, maintaining facilities in various cities, including Salinas, California. The complaint, as amended, also alleges that, during the preceding year, in the conduct of its business, Respondent furnished services valued in excess of $50,000 each to Firestone Tire & Rubber Company and Lockheed Missiles and Space Company, other compa- nies doing business in the State of California. The complaint further alleges, and it is stipulated that, if witnesses were produced and duly sworn, they would testify, that Firestone Tire & Rubber Company and Lockheed Missiles and Space Company sell and ship goods and furnish services, valued in excess of $50,000 each directly to customers located outside the State of California. Respondent concedes that there is no substan- tial issue as to the jurisdiction of the Board in this matter. It is, therefore, found, upon the basis of the foregoing and upon the entire record, that Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Building Service Employees Union, Local 77, AFL-CIO, herein called the Union, is, and at all times Company of California, the Act, the National Labor Relations Act, as amended (61 Stat 136, 73 Stat. 519, 29 U S C Sec 151, et seq ) Unless otherwise noted, all dates are in 1966 The allegation in the complaint of unlawful interrogation was withdrawn at the outset of the hearing AMERICAN BLDG. MAINTENANCE CO. 143 material has been, a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues 1. Whether Respondent violated Section 8(a)(1) of the Act, by instructing employees to deal directly with it and bypass the Union, their duly designated collective-bar- gaining representative. 2. Whether Respondent violated Section 8(a)(3) and 8(a)(1) of the Act, by discharging Melvin Perdue and An- drew Lowry because of their union or other protected concerted activities. B. Interference, Restraint, and Coercion 1. Introduction For at least 16 years, Respondent has had collective-bargaining relations with this and other labor organizations in California, encompassing the region between Belmont and King City, including Salinas, Santa Cruz, and Monterey, and Santa Clara, and San Benito Counties. The Palo Alto division, located in that city, which includes the Salinas office, is under the general su- pervision of Division Manager Joseph N. LaBarbera. In about November 1963, Firestone Tire & Rubber Company, herein called Firestone, opened a plant in Salinas about two to three and a half city blocks long, on a 30 to 36 acre site. Soon afterwards, Firestone and Respondent entered into a contract under which Re- spondent agreed to provide janitorial services at that plant. Respondent subsequently executed a collective- bargaining agreement with the Union, which was re- newed on December 15, 1965, effective from January 1, 1966, to January 1, 1969, automatically renewable on 60 days' notice prior to the original expiration or sub- sequent anniversary date.2 Although the contract between Firestone and Respond- ent is not in evidence, according to Wilbur L. Miller, chief of plant protection for Firestone,3 it provides for Respondent to perform janitorial services throughout the entire plant. The janitorial operation is under the general supervi- sion of O. C. Drennon, an employee of Respondent, as- signed to the Firestone plant. A former janitor himself, Drennon had been supervisor of janitorial services at the plant 2 years and 4 months at the time of the hearing. In April and May 1966, Drennon had 53 or 54 employees under his supervision on three shifts 4 In the performance of his duties, Drennon reports to Chief of Plant Protec- tion Miller, who notifies him of the number of men re- quired on each shift and the number of hours they are to work. Drennon turns in a report to Miller showing the number of hours worked by each employee. The jani- torial crews are paid by Respondent, which is reimbursed by Firestone. The janitorial services furnished Firestone by Respon- dent consist of dusting, mopping, waxing, cleaning machinery, and generally "policing" the area. During April and May, the period with which we are concerned, there were 14 men working on the "A" shift, 15, on the "B" shift, and 15, on the "C" shift, Monday through Friday. If janitorial services were required on weekends, Miller notified Drennon in writing of the number of men he would require on those days. Crucial among the services performed by Respondent is the removal of impacted rubber and tailings from the mixing machines, known as Banburys, of which there are four, designated as No. 27 (the "primary" Banbury), and Nos. 111, 112, and 113 (the latter two being referred to as the "final" Banbury machines).5 2. Alleged instructions to employees to deal directly with the Employer and bypass the Union Meetings of the graveyard crew were held by Super- visor Drennon from time to time during the period in question (April and May 1966), usually at the beginning or end of the shift. The meetings were not regularly scheduled, however, Drennon testifying that he called them when he began to receive complaints involving the care of the Banburys by the janitors. At these meetings, Drennon addressed himself to these complaints and in- vited the men to raise any problems they might have. There is disagreement between Perdue and Lowry, on the one hand, and Drennon, on the other, as to the sequence of a series of meetings held with the graveyard crew. Because of the uncertainty and vagueness on the part of Perdue and Lowry as to the dates these meetings occurred, Drennon's version of when they took place is probably the more reliable. In any event, it is unnecessary to resolve these conflicts. It is sufficient for the purposes of this case that they occurred sometime between April 14, the date Perdue became union shop steward, and May 13, the date Perdue and Lowry were discharged. Perdue, corroborated by Lowry, testified that, at 8 o'clock one morning, early in May,6 Drennon held such a meeting at his desk in the plant, which served as his "of- fice." According to Perdue, Drennon protested that em- 2 The contract was signed by Julian Gutierrez, on behalf of the Union, and Louis Chiappe, manager of the San Jose office, on behalf of Respond- ent. 3 Miller described his duties as "plant security, fire, and housekeeping," including "janitorial service." 4 The first shift, known as the "A" or graveyard shift, operated from midnight to 8 30 a.m ; the second or "B" shift, from 8 a in. to 4.30 p.m., and the swing or "C" shift from 4 p.m until 12 30 a.m 5 As described by Miller, the Banbury machines, which mix the rubber and compounds, are comparable to "king-size kitchen mixer[s]," in which the mixers extend horizontally to churn the ingredients fed into the machines The mixture is dropped through a divided horizontal "gate," which opens to allow the mixture to be discharged into a skip hoist from which it is transferred by conveyor to the mill The Banbury machine is about 15 feet high, the mixing chamber, which contains the rings, 7 or 8 feet high and about 6 feet long, and the entire machine is mounted over a pit. Tailings which become impacted in the rings and gate during operation of these machines must be removed by the Janitors with the use of picks or similar tools The four Banburys, all located in Department 112, are under the supervision of Firestone Department Manager Jack E. Ray, who also has charge of Departments 122 (calendering), 126 (tread tubing), 154 (camelback), and 561 (cement house), and supervises about 100 produc- tion employees. 6 According to Drennon, this meeting took place on about April 20, and, according to Lowry, about a week or 10 days before his discharge, which would establish the date as between May 3 and 6 Since, as Drennon testified, it was at this meeting that Perdue notified him that he was the new shop steward, having been appointed April 14, it is more probable that the meeting was held on the date indicated by Drennon In view of Perdue's militant attitude, manifested at these meetings, as well as at the hearing, it is not likely that Perdue would have long delayed notify- ing Drennon of his selection as shop steward, and proceeding to present his grievances 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees were taking their complaints to the Union instead of bringing them to him, and expressed disapproval of this practice. Perdue quoted Drennon as saying, "Bring your complaints to me. Keep it in the family. Let the Union stay out of this." Perdue did not elaborate or testify whether Drennon specified the complaints to which he referred. Although Drennon denied that he made the statements in precisely the language attributed to him by Perdue and Lowry, he testified, "If the union was mentioned [at this or any other meeting] it was mentioned just in conversa- tion- I mean, like `if you have any problems, don't run to the union. Bring them to me. Let's see what we can do about them to straighten them out."' Elsewhere, Drennon testified that he told the men that he saw no reason for them to "run to the union" if they had any complaints, and proposed, "Let's try to work it out here before you go to the union." As has been pointed out, there was no showing as to the nature of the complaints Drennon had in mind. Ad- mittedly, neither Perdue nor, for that matter, Lowry had registered any complaints or pressed any grievances with the Union prior to the time Perdue became shop steward. Nor, was there any showing that any other employees had done so . Moreover, there was no evidence , so far as this record discloses , that the controversy concerning the subject of work gloves or protective clothing, presently discussed, had been raised prior to this meeting. But, apart from this, since Drennon conceded, in effect, that he spoke of employees going to the Union with their com- plaints, and asked them to take them up with him before resorting to the Union, the question to deal directly with him and bypass their exclusive bargaining representative, or whether his remarks could have been so reasonably construed. The testimony of Perdue and Lowry as to their version of the remarks , must be weighed in light of their personal bias and interest in the outcome of this controversy, as well as their evident antagonism toward Drennon. Their testimony was necessarily based upon their interpretation of what he said, an interpretation obviously influenced by their own predilections. Moreover, in a pretrial affidavit given by Perdue to a Board agent, on June 20 , some 5 weeks after the discharge of these employees , Perdue quotes Drennon as saying that "they were getting along very good, [b]ut there were people going to the Union with complaints." Nowhere in the affidavit, or in a subsequent one, on July 11, is any specific mention made that Drennon objected to this, and , even if it be inferred that this was implicit in his remark, there is no mention that he told the crew to "keep the Union out," and that "[w]e don't need them."7 While these may not be glaring discrepancies, they point up the readiness of Perdue and Lowry to embellish what might otherwise constitute innocuous remarks with the taint of possible illegality. Perdue admitted that the Board agent who interviewed him asked him to relate everything which had been said by any management representative regarding the Union. Perdue's attempted explanation that he either mentioned the disputed re- marks to the investigator, who failed to include them in the affidavits, or that he intended to do so, but overlooked it, does not jibe with his admission that he read the af- fidavits before signing and subscribing to them, and did not ask to augment his statements. It may be reasonably assumed that his memory of the events about which he testified was more vivid on June 20, when he gave his first affidavit, than on the date of the hearing some 5 months later. Moreover, assuming that the details of Drennon's remarks had escaped Perdue when he gave his first affidavit, he did not avail himself of the opportunity on July 11 to supplement his original affidavit. It should also be noted that Perdue was far from being a naive, unsophisticated union adherent. On May 20, a week after his discharge, in a letter to Union Secretary-Treasurer Gutierrez, he criticized him for not prosecuting the grievances more aggressively.$ Furthermore, although the record establishes that all 14 crew members on the graveyard shift attended each of the meetings, none of the other crew members was called to corroborate Perdue and Lowry regarding the state- ments imputed on this occasion to Drennon. Moreover, in view of the amicable history of collective bargaining between Respondent and the Union, the ex- istence of a 3-year labor contract, which included grievance and arbitration machinery, the admitted absence of any prior unfair labor practice proceedings, and the lack of evidence of antiunion bias or hostility, it is farfetched to maintain that Respondent was asking the employees to deal with it directly and bypass the Union in derogation of the exclusive recognition as bargaining agent which Respondent had accorded the Union by con- tract. In light of these circumstances, Drennon's candid ad- mission that he told the men that he saw no reason for them to "run to the union" if they had any complaints, and that they should make an effort to work out their problems with him before taking them to the Union, is both more credible and plausible. As such, his remarks are more reasonably construed as an effort to persuade the employees to adjust any disputes with him before resorting to the grievance procedure under the contract. In this there was nothing unreasonable or unlawful. Ef- forts by an employer to solve problems relating to terms 7 Although not mentioned by any of the witnesses in the first pretrial statement, Perdue recites that , as the crew was about to leave , Drennon asked, "Is anyone dissatisfied - do you have any questions9 " Drennon then observed that when he first took hisjob, "everyone was telling ABM what to do , but he soon got that straightened out " (It is not improbable that Drennon's remarks about employees going to the Union with their complaints may have been made in this context.) The affidavit continues, that Drennon stated that someone had accused him of saying that anyone participating in union activities would be fired , and, pointing to various men in the group, asked , "You haven't heard me say anything like that have you?" The affidavit shows no response . In an affidavit given the same day by Lowry, he states that neither he nor Perdue had taken any complaints to the Union prior to that meeting , a statement which he af- firmed at the hearing, and there was no showing that Drennon had suspected either of them of doing so 6 The letter read, in part - " . I have 'sent you three cinch Grievances. Mister Dudley Bynoe, Mister Andrew C. Lowry and Mr Melvin D. Per- due, all of these cases are very easy ones They should be easy as taking candy away from a baby I am one of the greatest Union Men that ever put on a pair of pants I have had sixteen years experience in leading Union Men I have never lost a case Please , if you people don't know what you are doing, give me a chance "It is of [sic] my honest opinion , that you people are selling my cases out Please don't make the wrong move I have some questions to ask you and would like an answer immediately. Have you taken the Grievances up? What procedures did you use? Have these cases been c, reed out to the letter? Please give me an immediate answer. I heard something the other Day, one of ABM's Supervisors stated . `with ABM's money, they can do anything with that Union ' If I don't hear from you soon, I'll see you in Court " AMERICAN BLDG. MAINTENANCE CO. 145 and conditions of employment before they develop into grievances amenable to procedures contained in a collec- tive-bargaining agreement, are not only desirable but are also to be encouraged. This, in fact, is the accustomed procedure under conventional labor contracts. Moreover, since there is nothing which Drennon could have done to prevent the union steward or other employees from utiliz- ing the grievance procedure, there would be no purpose in endeavoring to persuade the employees to disregard their bargaining agent in this respect. There is nothing in the record to suggest that, by endeavoring to adjust any disputes at what might be regarded as a preliminary step to the grievance procedure, Drennon sought to frustrate or deprive the employees of their right to resort to the grievance machinery of the contract or to persuade them to bypass their bargaining representative. It is, therefore, found, on the basis of the foregoing, and upon the entire record, that Drennon's remarks to the em- ployees, in about May 1966, did not constitute instruc- tions to deal directly with Respondent and bypass the Union, and that Respondent has not, by said remarks, in- terfered with, restrained, or coerced employees in the ex- ercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. During the same meeting, according to him, Perdue, seconded by Lowry,9 demanded that the Company pro- vide employees working on the Banburys with work gloves.10 Perdue insisted to Drennon that under the union contract the Company was required to furnish em- ployees with work gloves and coveralls.ri According to Perdue, Drennon said, "Perdue, we have been working under the present condition two years before you came here, and we'll probably be working two years after you're gone." 12 At this meeting, Perdue also asked Drennon to provide the Union with a bulletin board in the plant, as likewise required by the union contract. According to Perdue's testimony, Drennon pointed to a metal cabinet, and said, "You can put your notices on that," then, correcting him- self, added, "No, bring your notices to me and I'll put them up if I want to." Perdue asked Drennon whether he might post union notices on Respondent's bulletin board at the plant. Drennon replied, according to Perdue, "You may not and don't put anything on that bulletin board." Drennon acknowledged that the subject of work gloves and the bulletin board was discussed at this meeting. However, he placed the discussion at a different meeting and in another context. According to him, this discussion took place at a meeting held May 9, called because of complaints he had received the previous week about the unsatisfactory care of the Banburys. Announcing that he had received complaints, he stated that it was evident that "someone was not doing their work in the Banbury," hinting at Perdue and Lowry. Expressing his displeasure, he admonished the men not to be "standing around talk- ing to Firestone personnel," an oblique reference to Low- ry, and told them to "do more work and less talk." He asked whether they had any problems but received no response. Drennon also told the crew that Miller, Ray, and the chemists at Firestone were "shook up" about the condi- tion of the Banburys, and repeated that he wanted the men to spend more time cleaning these machines and less time talking. Conceding that the subject of work gloves was discussed, Drennon testified that he told Perdue that he disagreed with his interpretation of the contract as to the Company's obligation to furnish work gloves. Drennon also testified that the Union had never required the Com- pany to supply its employees with gloves or special clothing at the Firestone plant, and as far as he was aware, had never contended that the Company was required to do so. Moreover, Drennon testified, he told Perdue that before Firestone would reimburse the Com- pany for such an expenditure, "they [would] kick us out," and that the Company would not supply gloves at its own expense. Drennon denied remarks, attributed to him by Lowry, that he said at this or any other meeting that he had at one time considered supplying the men with gloves, but since "someone went to the [god damn] . . . union, . . . let the [god damn] union furnish gloves."13 According to Drennon's version, when Perdue or Lowry broached the subject of work gloves, he asked them why they did not get the Union to supply them.14 Drennon told them, how- ever, that he had not yet obtained the gloves and that as soon as he did, he would see that they received them.15 Lowry asked Drennon when they could expect gloves. 9 Lowry, however, while testifying that he could not give the exact date of this meeting, placed it a week or 10 days before his termination, which occurred on May 13 10 Perdue testified that , in descending into the pit to scrape and clean the tracks on which the skip hoist was operated, it was necessary to hold onto the steel cable to which the skip hoist was attached. 11 The applicable section of the contract reads. SECTION 7 HOURS AND WORKING CONDITIONS (i) If special uniforms , overalls, or coveralls are required, it is agreed that such must be furnished by the Employer without cost to the employees and the cost of upkeep and maintenance of them must be paid for by the Employer. The employees agree to take good care of such uniforms, overalls, or coveralls, and not to wear same except in the course of their working hours, meal-times excepted. Manifestly, the word "required" leaves open the question as to whose decision should govern as to whether special clothing is required . It is un- necessary, however, for the purpose of this proceeding to decide this is- sue, since the question of whether Perdue and Lowry were engaging in protected concerted activities in connection with their demand does not turn on the merits of their claim 12 Lowry quoted Drennon as saying that the Banbury janitors were -'[w]earing clothing like that before you got here and they will be wearing it probably after you are gone " Drennon testified that he did not recall making this remark, but it is not unlikely that he made some such com- ment. In light of Perdue's officious remarks to Drennon shortly after he was hired, presently related, Drennon's rejoinder is not supnsmg. Under these circumstances , Drennon's remarks are insufficient to justify a find- ing of hostility toward Perdue for raising the subject of special clothing. Nor, does it furnish a basis for concluding, as the General Counsel seems to imply, that this was a portent of Perdue's eventual discharge is Significantly, there is no mention of this remark in either of Perdue's pretrial affidavits 14 In Lowry's version, Drennon told them, "we have not, we are not, and we will not furnish you with gloves. If your union wants you to have gloves, let them buy them for you There is plenty of soap and water over there in the locker room you can wash your hands with." It is unlikely, judged by his attitude and demeanor at the hearing, and the generally am- icable relations between the Company and the Union, that Drennon resorted to profanity in this exchange The imputation appears to be a further attempt to ascribe to Drennon an attitude of hostility toward the Union. Moreover, the remark appears to have been made more in jest than in anger Considering the equivocal language on the subject in the contract , the remark, in any event, is not sufficient to support an inference of union animus. 15 As will later appear, Drennon had apparently taken the matter up with Division Manager LaBarbera , and eventually supplied Perdue and Lowry with gloves 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drennon told him that the gloves had not yet arrived from the Palo Alto office. When Perdue and Lowry turned to the subject of protective clothing, Drennon called their attention to the applicable section of the contract, and in- sisted that it was not required under its terms. According to Drennon, either Perdue or Lowry remarked that they expected to get everything they were entitled to under the contract. Drennon assured them that they were receiving everything that was due them, including an hourly rate of $2.34. Lowry asked why they could not use gloves sup- plied by Firestone to its employees. Drennon told him that he had taken the matter up with Plant Protection Chief Miller, who had taken the position that, since Firestone was under contract with ABM for the janitorial work, Firestone would not permit the Company to use Firestone equipment or' supplies in performing these ser- vices. According to Drennon, when Perdue brought up the subject of the bulletin board, Drennon told him that the Company was in the midst of moving its Salinas office, but as soon as that was done, he would furnish the bul- letin board. Meanwhile, he suggested that Perdue use the cardboard which he, Drennon, had prepared with the Union's name, and had taped to the side of the locker, of- fering him the use of his stapler with which to attach notices. He instructed Perdue, however, not to use either the Firestone or ABM bulletin board at the plant.16 At a subsequent meeting in April, according to Drennon, after discussing complaints on the Banburys, Drennon invited questions. Lowry asked, "What about the gloves?" Drennon said that he had done the best he could but that he had only been able to get the men rubber gloves. Lowry said that any type of gloves would do. Drennon then brought out the gloves, handed a pair to Lowry, and asked him to sign for them. Drennon asked whether any of the others wanted gloves. They indicated that they did not.17 Lowry testified that at about 9 o'clock on the Monday morning before his discharge, Drennon called him at his home, and asked whether he had wanted to speak to him. Lowry replied that he had not. According to Lowry, Drennon told him that Foreman Williams had said that Lowry had wanted to talk to him about the gloves. Lowry repeated that he felt the men should have work gloves. With that, Drennon exclaimed, "What are you trying to do ... cause trouble out here?" Then, Lowry testified, Drennon said, "I'll buy you some damn gloves and you will sign for them, and if you lose them, you will pay for them," and hung up. A day or two later, Lowry con- tinued, when he reported with Perdue on their regular shift, Drennon handed Lowry a pair of rubber gloves, re- marking, "Here's your gloves. These are the best I can do for you," and, "If you burn your hands on hot rubber, that's too bad." ' According to Lowry, Drennon said that if the shop steward wanted to post notices on the bulletin board, he could bring them to Drennon, and he would put them on the company bulletin board if he saw fit to do so, but that the Union was not to use the company bulletin board Drennon testified that the cardboard, bearing the name of the Union, was put up sometime in April before this meeting There is no allegation in the com- plaint that Respondent committed an unfair labor practice by Drennon's conduct concerning the bulletin board The evidence was presumably of- fered in support of Perdue's and Lowry's concerted activities. i' Drennon also testified that as the meeting ended, he made a remark to employee Hernandez about being sure not to report to work with al- cohol on his breath, an allusion to an apparent previous drinking problem, which had apparently been remedied. The incident is mentioned only Drennon denied any telephone conversation with Low- ry, testifying that the only time the subject was discussed was at the shift meeting, and categorically denying the re- marks imputed to him by Lowry. According to Drennon, when he gave Lowry the rubber gloves, he told him that they were the best he could get, and said, "If you burn your hands, you're going to have to run up to the hospital and get something done about them." 18 It is not alleged or contended, nor does the evidence warrant a finding, that by Drennon's conduct or state- ments in regard to the issues of work gloves, special clothing, and the bulletin board, discussed in detail above, Respondent has interfered with, restrained, or coerced employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1), or has engaged in any other unfair labor practices. The evidence on these mat- ters was presumably introduced, and has been considered only, for the purpose of determining whether, by their participation in these events, Perdue and Lowry were en- gaging in protected concerted activities, and, whether, in discharging these employees, Respondent was motivated by such participation, rather than by valid and legitimate considerations, issues to which we now turn. C. Discrimination in regard to hire and tenure of employment 1. Melvin D. Perdue Melvin Perdue was initially employed by Respondent in November 1965, as a member of a waxing crew servic- ing various concerns under contract with Respondent. Early in December 1965, he was assigned to the Firestone plant, where he worked continuously until his discharge on May 13. His principal duties consisted of janitorial work, cleaning the Banbury machines and pits, on the graveyard shift under Waymom O. Williams, shift super- visor or foreman.19 On April 14, 1966, Perdue became shop steward. Admittedly, he had never previously discussed grievances with management or filed grievances on behalf of any fellow employees. A week or 10 days after he started at the plant, Perdue, a Negro, protested to Drennon (also, incidentally, a Negro), that his foreman (Williams, a Caucasian), was "prejudiced." Drennon did not ask Perdue what he meant, but denied that the foreman was prejudiced, add- ing, "If there was anyone prejudiced, it was I, because I wanted my work done." Perdue retorted, "Well, you don't know what's going on. I know." Drennon rejoined, "Well, I know what's going on. My foremen have their in- structions to be carried out. I know exactly what is going on. This is all I want." Perdue then ventured, "Well, I used to be a supervisor of 1500 men. I can help you." because of the General Counsel's claim of disparate treatment in dealing with Perdue and Lowry, as contrasted with Hernandez, discussed later is It may be doubtful that Drennon said this out of solicitude for Lowry On the other hand, even if he made the remark out of pique at Respond- ent's concession, on an issue which he felt Respondent was not required to make, the remark was doubtless provoked by Lowry's evident disgrun- tlement at the type of gloves Respondent was furnishing . Lowry had ex- pected gloves with "leather palms" similar to those used by Firestone per- sonnel, and left no doubt that he considered the rubber gloves worthless Be that as it may, in view of all the circumstances, the remark is insuffi- cient to Justify an inference of hostility or illegal motivation i9 Until the last 2 days of his employment, when he worked for Foreman Wallace G Wagenbreth (who left Respondent's employ about July 14, 1966) AMERICAN BLDG. MAINTENANCE CO. 147 Drennon replied that he did not need any help, and that he was satisfied "the way things were operating." Under cross-examination, Perdue admitted this con- versation with Drennon, omitting, however, any mention of his offer to help or of the remark concerning his previ- ous supervisory experience. He also conceded that he later discovered that he had been mistaken in believing that Williams was prejudiced, a conclusion borne out, as will be seen, by Williams' testimony in his behalf. Perdue's subsequent activities have already been detailed. Perdue wore a union button at the plant, and after becoming shop steward, distributed union buttons, which were freely available on Drennon's desk. 2. Andrew C. Lowry Andrew Lowry was employed as a janitor at the plant on or about April 28, 1965, and, with Perdue, was ter- minated on May 13, 1966. For a month, he was assigned to cutting weeds near the railroad tracks and fence sur- rounding the plant. He was then assigned to work inside the plant, and, in about October 1965, began working on the Banbury machine on the swing shift. After some 4-1/2 or 5 months, he was transferred to the graveyard shift, on which he remained until his discharge. When the Banbury machines were in operation, Lowry worked on top of the machines, dusting and cleaning, while Perdue worked below, sweeping the area and disposing of accumulated trash. When the machines were not in operation, Lowry assisted Perdue in cleaning the Banbury pits, skip hoist, and bucket. Like Perdue, he was a member of the Union, and wore a union button openly at the plant. His testimony generally corroborated Per- due's, and his participation with Perdue in the events which took place has already been recounted. 3. Events culminating in the discharges On May 13, Foreman Wagenbreth notified Perdue that Drennon wanted to see him and Lowry at the end of the shift. When the men reported to Drennon's desk, he was not there. After waiting 10 or 15 minutes, the two men left to wash and change, deciding to wait for Drennon to pass that way, as was his habit. At about 9 o'clock, Drennon appeared with two envelopes and announced that he had their termination checks. Perdue asked Drennon why he was being terminated. Drennon said that it was for "unsatisfactory work." Lowry retorted that "he knew [god damn] well that he wasn't discharging him for unsatisfactory work." According to Perdue, when he asked Drennon what he meant by "unsatisfactory work," Drennon made no reply. The men refused to accept their checks until they had consulted the Union. On June 6, Lowry went to the company office and picked up his last paycheck. Perdue called for his during the same period. Drennon testified that when he told Lowry he was being terminated for unsatisfactory work, Lowry shouted, "No, that ain't why you're firing me. You're fir- ing me because I'm bringing pressure on you from the union " Perdue, who had been at another row of lockers some 10 yards away, came over, and Drennon also told him that he was letting him go for unsatisfactory work. According to Drennon, Lowry broke into "loud profani- ty." Drennon asked him for his key and badge, and Lowry said that he was going to get his things from the locker. Then, according to Drennon, Lowry threw his key and badge on the floor, and Perdue followed suit, re- marking, "You haven't heard the last of this, if we have to go to Washington." Lowry again raised his voice, and engaged in profanity. Drennon called on a Firestone security guard, whom he identified by name, to escort the men from the building. During Lowry's tirade, he snapped at Drennon, "I know you like a book." Asked what he meant, Lowry merely repeated the remark.20 Contentions of the Parties; Conclusions As is evident from what has already been stated, the General Counsel maintains that Perdue and Lowry were discharged because of their union or concerted activities. This is based primarily, in the case of Perdue, upon his activities in his role as union steward in urging recon- sideration of Bynoe's discharge,21 and demanding a union bulletin board, and, with regard to both Perdue and Low- ry, on their activities in requiring work gloves and coveralls for employees working on the Banburys. As is equally apparent, Respondent contends that both Perdue and Lowry were discharged because of their un- satisfactory work performance, without regard to any considerations of union or concerted activities. In April and early May, Perdue and Lowry were work- ing on the 112 and 113 or final Banburys, Lowry generally working on the 113 Banbury. Their duties con- sisted of removing the residue or tailings from the rings on the machines, emptying waste oil buckets, and, whenever operation of the machines was suspended, cleaning the "throat," bucket and skip hoist, as well as keeping the floor in the area clean. Failure to prevent the tailings from clogging the rings could result in a break in the lubricating of oil lines, creating a fire hazzard. As has already been mentioned, Miller, chief of plant protection, was the Firestone representative responsible for the safety of plant operations. Production on the Ban- bury machines was under the general supervision of Firestone Department Manager Ray. According to Ray, 20 This cryptic remark was not explained by Lowry at the time, nor, for that matter, at the hearing. Although Lowry denied engaging in this vitu- perative exchange, it is evident that there was bad feeling between him and Drennon Both men had servedin the Armed Forces together at Fort Ord, California, Lowry as a sergeant, assigned to the post engineers, Drennon , as a training sergeant , first class, assigned to company headquarters According to Drennon, his relations with Lowry had been "unfriendly" since the occasion when he was obliged to discipline him in front of the entire company for "talking in formation " Whatever the details of this episode, it is obvious that Lowry was antagonistic toward, if not resentful of, Drennon. Lowry had been hired by Earl Cline, Respondent 's district manager at the Salinas office , presumably without poor consultation with Drennon 11 It should be noted that Perdue did not include Bynoe in his charge, and there is no allegation in the complaint that his discharge was dis- criminatory, despite the fact that Perdue named him in his letter of May 20 to Union Representative Gutierrez. Nor, is there any showing that Perdue pursued the grievance procedure of the union contract with regard to any of these discharges The tone of his letter may account for one of the reasons the Union failed to take action on his behalf and those for whom he purported to be acting That both Gutierrez and Drennon may have resented his aspirations for their respective positions , is suggested by an excerpt from Drennon's letter, dated May 23, addressed "To Whom It May Concern," purporting to give the reasons for the discharge of both men It reads: "Soon after this Melvin Perdue and Andrew Lowry started to work together in the Banbury Pit area and I heard Melvin Perude [sic] was running for my job He said after he got me out , he was going to run for Union Secretary." 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during April or May, he had "quite a few complaints" re- garding faulty cleaning of the final Banburys, and failure to remove rubber impacted in the rings and gate, and to keep the skip hoists clean. Ray characterized the condi- tion of these units as "miserable." Ray further com- plained that when he arrived at work mornings , between 6:30 and 7:30 a.m., he found no sign of janitors working at the Banburys. He complained of this to Miller, who referred the complaints to Drennon. In addition, Miller himself testified that on the basis of his own inspection, he observed that the Banbury machines, including the parts and rings, as well as the floor area, were not being properly cleaned. At the meeting of the graveyard shift on April 20, Su- pervisor Drennon notified the employees of the com- plaints he had been receiving from Firestone.22 Later the same month, Drennon called another meeting of the graveyard shift, in which he again aired complaints about the maintenance of the Banburys. On May 3, Ray issued a memorandum to Drennon complaining of the condition of the Banbury machines.23 Next morning, Drennon showed the memorandum to Perdue and Lowry in the locker room as they were preparing to leave after their shift. Drennon told them that he had been receiving complaints during the past week, and asked them what had been happening at the Banbury, specifically mentioning the rings, gate, bucket, and the chute. Perdue replied that the Banburys had been in operation, implying that this had prevented them from cleaning the machines. Drennon said that he was aware of that, but that he expected them to do as much as they could while the Banburys were shut down, and instructed them to notify their foreman of how much they had ac- complished so that he could make a record of it. Perdue agreed to do so, and Drennon left. Early next morning, at his desk, Drennon told Foreman Williams that Perdue and Lowry were getting Respond- ent into trouble because they were not doing their work on the Banburys. Williams suggested that Drennon talk 22 This was the meeting, according to Drennon, at which Perdue had notified him of his election as shop steward, and raised the subject of gloves and a union bulletin board 23 The memorandum read SUBJECT BANBURY CLEANERS The present Final and Master Batch Banburys have again been al- lowed to deteriorate from a cleaning standpoint. It appears that no ef- fort has been made to insist that these cleaners do the work as required. The most serious problem, however, is that they are not keeping the tailings picked up from the gate and rings; this eventually builds up and clogs the rings, breaking the oil lines, which thereby causes fires. A fire now would be almost an impossibility to put out in the present deplorable condition of these units. A concentrated program must be made and followed to put these units back in the immaculate condition required and then maintained. Quite obviously, the responsibility for insuring that you are kept in- formed of the condition of these units is with the Production Division. We have fallen down here with the expansion program moving as it has This will not happen again to the two men. He told him that he had already done so the day before, and shown them Ray's interoffice memorandum. Williams said that he and the men were doing the best they could. Drennon rejoined that "[t]heir best [wasl not good enough."24 Next day, when Drennon, who had been at the Respondent's office in Salinas , returned, he discovered that Chief Miller had instructed Foreman Wagenbreth to detail some men to clean the Banburys, and had left word that he wanted to see Drennon. Drennon called on Miller later that morning. Miller asked him why the first shift had not been doing their job on the Banburys. Drennon ventured that he did not know which of the three shifts was at fault. Miller insisted that it was the first shift, and that Production Manager Ray had been checking the Banbury area on that shift and could not find any janitors there. When Drennon protested that that was impossible, Miller continued, "Now we are paying out extra money to get that Banbury cleaned. I want it clean." Drennon testified that he probably took the matter up with Wagen- breth who assured him that the situation had been remedied. The same day, due to risk of contamination, the chemists closed down the Banburys for an hour and a half while the skip hoist, bucket, and chute were scraped, and the tailings removed from the gate. Subsequently, Drennon checked the Banbury area routinely at 7 or 7:30 every morning, but found no evidence of any sustained ef- fort to keep the Banburys clean. On May 9, Drennon received another interoffice memorandum, this time from Miller, still complaining of the condition of the Banburys.25 At midnight, the same day, Drennon held another meeting of the graveyard shift. Again, Drennon com- plained that "someone was not doing their work in the Banbury," implicating Perdue and Lowry, and said that he had been receiving complaints. Expressing his displea sure, he admonished the men not to be "standing around We also feel that you should take some interest and make your own .inspection at least once per week. /s/JER J E. RAY cc: Mr. L. G Sheckler ag 14 Under these circumstances, as well as those mentioned later, it is im- possible to credit the general denials of these men that they ever received complaints about their work. 21 The memo read INTEROFFICE MEMORANDUM To O. C DRENNON DEPT ABM DATE 5/9/66 In Reference To Banbury Clean-up During the week of 5/2/66 to 5/6/66 the cleaning of the Banbury machines has slipped badly-we were just getting by before-this last week got us into trouble I expect you to straighten out your people and get this job done and done right -I want to go over this matter with you on Wed 5/1 1/66 to see what you have done WL Miller Plant/Prot. Signature Dist. or Dept. AMERICAN BLDG. MAINTENANCE CO. 149 talking to Firestone personnel," an obvious reference to Lowry, and told the men to work more and talk less.26 On May 11, the day scheduled by Miller in his memo of May 9 for his meeting with Drennon, Miller handed him another memo. Reiterating that cleaning of the Ban- burys had "gone steadily down in the last 10 to 14 days," the memo stated that it was imperative that "immediate corrective action be taken." Otherwise, Miller concluded, Firestone would be required to spend "extra time and money," in overtime and additional help to do the work which should have been performed on the regular shift. Miller also told Drennon that he, Miller, and Ray would be checking very closely on the condition of the, Ban- burys__ Drennon showed each of the written memos to Foreman Williams, and complained that Lowry and Per- due were not doing their work properly, that the Com- pany was "in trouble," and would have to make a special effort to correct the condition at the Banburys. Drennon said that he had already spoken to the men, and had in- structed them to notify Williams whenever the Banburys were shut down so that they could clean them promptly. Drennon also directed Williams to keep a record of the time the machines were shut down and the time they were turned on. Williams testified, however, that Drennon did not show him any of the written complaints he had received until after the two men were discharged. When he did, accord- ing to Williams, he was unable to read them because he was not wearing his glasses, and Drennon snatched the memos away before he had a chance to do so. Drennon, however, testified that he showed each of the complaints to Williams when they were received, and, although Wil- liams was not wearing his glasses at the time, he removed them from his pocket and read the complaints. Subpenaed as a witness by the General Counsel, Wil- liams, a working foreman and union member, manifested a strongly partisan attitude in favor of these employees. His attitude and demeanor was vacillating and equivocal, and his testimony frequently self-contradictory. He acknowledged that he showed Lowry the warning notice Drennon had left for him on May 5, and that he read it to him. It seems altogether unlikely, therefore, especially in light of Firestone's complaints, which Williams admitted Drennon had discussed with him, that Drennon would have postponed showing Williams the interoffice memos from Firestone until after the discharge of these em- ployees, and, even then, preventing him from reading them. Furthermore, at the behest of these employees, Williams volunteered to give a pretrial affidavit (the con- tents of which were not revealed at the hearing), to the Board agent investigating the case.27 More significantly, in evaluating Williams' testimony, it should be noted that he had aspired to the job of Drennon's assistant, and was admittedly chagrined when the job went to someone else. While the General Counsel seeks to make a virtue of Williams' candid admission of this fact, the virtue appears to be made of necessity. Due consideration has been given to the argument that Wil- liams, a minor supervisory employee, still in Respond- ent's employ (as of the time of the hearing), would not be likely to jeopardize his employment by testifying contrary to the interest of the employer if he were not telling the truth. Although the argument has some persuasive ap- peal, it is no guarantee of trustworthiness of the witness' testimony, particularly in the face of credible, counter- vailing evidence. In short. Williams' testimony failed to inspire credence. The General Counsel's contention that Perdue and Lowry were discharged because of their union or con- certed activities must, therefore, be judged in light of all the foregoing circumstances. Granting that the activities in which these men engaged constituted protected con- certed activity, irrespective of the soundness of their position, this, in itself, would not ensure them against discharge for just cause or legitimate reasons. It is, of course, equally true that valid grounds for discharge will not absolve the employer from the consequences of dis- crimination if the discharge was actually motivated by a purpose to discourage protected concerted activities, or to interfere with the self-organizational rights of the em- ployees, and the grounds are merely resorted to as a pre- text for eliminating a militant union protagonist. And, if an employee is discharged. in part, because of his union or concerted activities, and, in part. because of his short- comings or derelictions. the discharge is, nevertheless. violative of the Act. Finally, if an employee is actually discharged or otherwise disciplined for valid and legiti- mate reasons, untainted by motives proscribed by the Act, there is no violation merely because he was engaged in protected concerted activities and "the employer sheds no tears at his loss."28 Once again, then, we are con- fronted with the ever perplexing question of what actually motivated the employer in discharging the employees. for, as Respondent properly argues. there is nothing in the Act which interferes with the normal exercise of the right of an employer to discharge an employee for cause, or, in- deed, for no reason whatever, provided only that he is not motivated by considerations proscribed by the Act. In addition to Respondent's primary contention that 26 Carsbia Anderson, an ABM employee who worked in the tuber area (a foreman on the graveyard shift at the time of the hearing), in the general vicinity of Perdue and Lowry, also testified that he observed both men en- gaging in idle conversation with Firestone employees On May 5, several days before this graveyard shift meeting, after Miller had complained to Drennon that Lowry had been talking to Firestone employees when he should have been working, Drennon left a note for Lowry, through Foreman Williams, in one of the drawers of Drennon's desk , in which in- structions were left for foremen Referring to a posted notice, dated June 18, 1965, the note warned Lowry that he had been observed making con- versation with a Firestone employee about "coming to work for them" and other topics, and cautioned him that unless he desisted from such con- duct, he would risk discharge the next time it happened. The note stated that it merely constituted a warning, and that Lowry could see Drennon about it if he desired. There is no evidence that Lowry took advantage of this offer 27 Respondent moved to strike the witness' testimony on the ground that the affidavit was taken in disregard of notice by Respondent's counsel to the Regional Office that none of Respondent's management representa- tives were to be interviewed, except by prearrangement with its counsel Since it is evident that Williams, at the request of these employees , volun- teered to give an affidavit , and accompanied these men to Salinas to meet with the Board agent for that purpose , it does not appear that there has been any breach of ethics respecting any informal understanding that may have been reached by the parties . In any event, whatever disagreement may exist between Respondent's counsel and the Regional Office as to the nature of their understanding, there is no basis for striking the testimony on the stated ground Any complaint for alleged breach of ethics in this re- gard is more properly one for administrative consideration . The motion was, therefore, denied. 28 See, e.g., Electra Controls, inc., 161 NLRB 307, citing N L.R.B v Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2), and cases cited. 308-926 0-70-11 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perdue and Lowry were discharged for unsatisfactory work of such an aggravated nature as to jeopardize its contract with Firestone. Respondent advanced as grounds for its dissatisfaction with these employees. par- ticularly Lowry, their proclivity for engaging Firestone employees in idle conversation during working time. Also, in the case of Lowry, Respondent contends that his presence created trouble almost from the date of his original hire in April 1965. On his initial job, cutting weeds, he was observed by Foreman Salvador Roseli sitting down and smoking with three fellow employees when he should have been working. Lowry was not disciplined on this occasion but merely instructed with the other men to resume their work. About a month later Drennon was obliged to instruct Roseli to admonish Lowry for "leaning on his broom" instead of working. On another occasion, at some unspecified date, Assistant Su- pervisor Ordaz observed Lowry leaning on a mop and reprimanded him for it. Again, in April 1966, while em- ployee Ellison Sory was performing janitorial work in the cafeteria. Lowry interfered with his work by badgering him about failing to attend a union meeting. Sory reported the incident to Drennon, who reproached Lowry. It will be recalled that the May 5 warning which Drennon issued Lowry for engaging Firestone employees in conversation, directed his attention to the company rules of June 18, 1965, posted in the plant.29 Additionally, Respondent had promulgated rules earli- er, which had been posted, at least, since March 1965. The rules, accompanied by an explanatory letter setting forth "Company Working Policies." consisted of 16 rules, introduced by the statement, "Violation of any of the following Rules may result in discharge."30 Regarding the complaint that Lowry engaged in unnecessary con- versation with Firestone employees. Respondent ap- parently relies on rule 10: Gambling, Soliciting or Selling on Company Property or Time. The specific offense. Respondent contends, was "Soliciting." There is, how- ever. no evidence, apart from the incident involving em- ployee Sory, that Lowry had engaged in soliciting in the conventional sense while he talked to Firestone em- ployees. Rather, the evidence indicates that Lowry was given to recounting his experiences in the Armed Forces and apparent efforts to obtain employment with Firestone. The General Counsel contends, however, that the May 5 notice to Lowry expressly stated that it was only a warning, and there is no showing that Lowry per- sisted in this conduct. Since, the argument continues, Drennon decided to terminate Perdue and Lowry the fol- lowing day, May 6. Lowry's idle talk to Firestone em- '" The rule in question reads 18 June 1965 It has been observed that too much conversation is being carried on between A B M. employees and Firestone employees This practice will STOP Anyone caught violating this warning will be terminated on the spot. [Emphasis supplied ] 40 The letter, which together with the rules was posted on company bul- letin boards, read, in part 4. Violation of anyone of these rules will call for some form of disciplinary action against the offending employee In some cases the resulting action may be either verbal or written warning In more seri- ous cases, violation may result in termination. ployees could scarcely have been a factor in his discharge. The point may be well taken. However, since it is obvious that Respondent has relied primarily as grounds for discharge upon the unsatisfactory work per- formance of these employees, this argument avails him nothing. Nor, does the contention that other employees who engaged in conversation, unrelated to their work. with Firestone employees and were reported by their foreman to Drennon were not disciplined. As to their derelictions in regard to the Banburys, the General Counsel denies that Perdue and Lowry were responsible for the accumulation of tailings during the day when the machines were in operation for entire shift. Ac- cording to Department Manager Ray, however, tailings and other residue can be removed from the rings and gate even while the machines are in operation. Although the final Banburys are generally operated from 2-1/2 to 3 hours on the graveyard shift, according to Drennon. Per- due and Lowry had at least 4 hours in which to clean the bearings, skip hoist, bucket, and pit. Obviously, operation of the Banburys did not interfere with cleaning the sur- rounding floor area. Moreover, according to Hollis No- land, a witness for the General Counsel, two men could clean two Banburys in an 8-hour shift if the Banburys are not in operation. It would. therefore, appear that Perdue and Lowry could have cleaned the Banburys during their 8-hour shift when the machines were not operating. Ac- cording to Ray, the skip hoist could be cleaned in about a half hour; the pit in 15 or 20 minutes. depending on the length of time the Banburys had been in operation. To make the pit "spotless" would require at least 8 hours, but Firestone did not require or expect the pit to be kept in immaculate condition while the Banburys were running. The General Counsel, however, contends that under normal operation tailings accumulated on the gate in 20 minutes. Furthermore, he alludes to Foreman Wagen- breth's testimony that Ray and Drennon complained about accumulation of tailings on the gate with regard to all shifts. According to Clark. a janitor on the day shift and a witness for Respondent, although the Banburys were generally in "pretty fair condition" when he came on his shift following Perdue and Lowry. on at least 3 or 4 mornings in April and May the Banburys were not clean. The General Counsel argues, however, that Per- due and Lowry were not alone at fault in failing to keep the Banburys clean and free from clogging. The General Counsel also attempts to capitalize on the fact that, despite Drennon's concern over Ray's 5. Since there is no mechanical formula for establishing disciplinary action, the following four important factors will be considered - a) Seriousness of the offense; b) Employee's past record, c) Circumstances surrounding this particular case, d) Company past practive [sic] in similar cases 6 .. Discharge will be resorted to only in two situations a) Where the violation is a major offense of such a serious na- ture as to make any other form of discipline inadvisable For ex- ample b) Repeated minor violations of rules despite proper warnings. AMERICAN BLDG. MAINTENANCE CO. memorandum of May 3, which presumably prompted Drennon's decision to discharge the two men, in his "warning" note to Lowry on May 5. reproving him for talking to Firestone employees. Drennon makes no men- tion of Firestone's dissatisfaction with the cleaning of the Banburys serious enough to have mentioned it in his note to Lowry, but testified that he failed to do so because things were happening so fast and, moreover, because he did not want to confuse Lowry by putting "too much in- formation" in the note. While this explanation is not too convincing, this evidence is not sufficient to diminish the weight of Drennon's overall testimony. It may be noted that Drennon testified that in his daily instruction sheet to Foreman Williams on May 4, he directed that "more emphasis [be] put on the rings, tailings." and that he wanted more work done on the Banburys. although he did not include this in his written instructions. The General Counsel also contends that since Drennon decided to terminate Perdue and Lowry on May 6, evidence of unsatisfactory work during the following week is entitled to no weight. The point is not well taken. The men were unaware of Drennon's decision at that time and the evidence of their continuing unsatisfactory work reinforced Drennon's earlier decision. It will, moreover, be recalled that Miller's two interof- fice memorandums to Drennon, dated May 9 and 1 I , were prompted by his own inspection of the Banburys, as well as reports he had received from Ray. In the May 11 memorandum. Miller laid the fault for the improper main- tenance of the machines to the graveyard shift. The fact, as the General Counsel contends, that Drennon failed to mention to Miller, when he conferred with him on those dates about the condition of the Banburys, that he had al- ready decided to discharge Perdue and Lowry (despite the fact that Miller had purportedly threatened to cancel the janitorial contract with Respondent), is not of suffi- cient significance to establish that Drennon did not regard Perdue and Lowry responsible for the unsatisfactory maintenance of the Banburys. The testimony of James F. Woods, a millwright and witness for the General Counsel, formerly employed by a construction company which serviced the Banburys. has not been overlooked. His job entailed repairing and lubricating the machines, and he testified that. on occa- sions when he worked with Perdue and Lowry, they were always cleaning the machines. According to him, the only time he observed these men leaving the machines was during recess and lunch periods. Assuming. as the General Counsel contends, that Woods was a wholly im- partial witness, the record fails to establish the frequency with which Woods was present while Perdue and Lowry were cleaning the machines or the length of time he had an opportunity to observe them. This evidence is. there- fore, wholly insufficient to overcome the more positive evidence regarding the dereliction of these employees. The contention that the failure to issue these em- ployees a written warning was contrary to Respondent's normal personnel practice is not persuasive. Despite evidence of two instances of written warnings to em- ployees, one on April 4 and another on April 7. it is evident that the company rules, which have already been 31 See footnote 26. 32 The interoffice memorandum, dated June 15, addressed to Drennon, on the subject matter of Banbury machines 27, 112, and 113 reads as fol- lows. 151 mentioned, contained no such requirement. Moreover, as has already been pointed out, the notice accompanying the rules clearly states that disciplinary action for viola- tion of the rules could be by oral or written warning, and ultimately result in termination. The record further establishes that Respondent has terminated other em- ployees, notably Dudley Bynoe, on whose behalf Perdue had tried to intercede, on April 27, and at least two other employees. one late in January and the other early in April, without prior written warning. Moreover, as Drennon testified, complaints from Fire- stone were being received so frequently that he scarcely had time to issue Perdue and Lowry written warn- ings, although it is clear he had given them several oral warnings about the condition of the Banburys. The warning with regard to his talking to Firestone employees has already been mentioned.31 The General Counsel also contends that the problem of maintaining the Banburys free from accumulations of residue and tailings was attributable, at least in part, to in- creased production in April, when the Banburys were in almost constant operation. Department Manager Ray ad- mitted, on cross-examination, that " . . . problems began when we started operating more consistently on the first shift." Since, however, cleaning of the Banburys was possible even while machines were in operation, this would not be sufficient to relieve Perdue and Lowry of the responsibility for keeping the machines free of accu- mulations of rubber residue and tailings. Moreover, since the machines were shut down for about 4 hours during the graveyard shift, Perdue and Lowry should have had suffi- cient opportunity to clean the machines and the appur- tenances. as well as the pit. in this interval. It should also be noted that on about May 3. after Ray had complained about the condition of the Banburys. Plant Protection Chief Miller found it necessary to instruct Foreman Wagenbreth to detail some men to correct the condition. It is also significant that since the discharge of Perdue and Lowry. the janitorial work on the machines improved considerably, -had "never been better," prompting a memorandum of commendation from Miller to Drennon.32 The General Counsel attempts to dismiss this by referring to the pretrial affidavit given by Miller to a Board agent 3 weeks later. In this affidavit, given on July 5 (not offered in evidence), Miller is quoted as saying that there had been "periodic complaints" about the cleaning of the Banburys, though he could not fix the date or time of the complaints, or pinpoint the shift about which the complaints were made. Since it does not appear whether, at the time he gave this affidavit, Miller had ac- cess to his records, this apparent discrepancy is not suffi- cient to overcome the weight of his otherwise credible testimony, including the memorandums introduced in evidence. Finally, in an effort to establish the pretextuous nature of the discharges, the General Counsel relies on the al- leged disparate treatment of these employees in contrast to the treatment allegedly accorded employee Herrera. This relates to an apparent drinking problem Drennon had experienced with Herrera, which had been resolved satisfactorily. Herrera remained in Respondent's employ It has been noticed by the department supervision and the chemist that the Banbury cleaning has shown a marked improvement , mostly on the 1st shift. We are having less product contamination on all shifts Please pass on a pat on the back to your people and keep up the improvement on thejob 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until sometime in June, when he was discharged because of garnishment of his wages. Neither this incident, nor the fact that Perdue and Lowry were not issued warning notices, as had been done in a few isolated cases, despite the fact that Respondent maintained a printed form for this purpose, is sufficient to establish any disparity of treatment. It may be oberved that the record suggests an un- dercurrent of personal antagonism and resentment by Perdue and Lowry toward Drennon. and that Drennon reciprocated these feelings. Undoubtedly. Drennon did not take kindly to Perdue's officious attitude almost from the inception of his employment, and his militant, if not. defiant and belligerent attitude afterward, especially since his designation as union steward. Thus, Perdue's "offer" to Drennon of the benefit of his alleged previous super- visory experience, when, according to Perdue, he had charge of some 1,500 men. Drennon's reaction to this is manifested in his letter of May 23, purporting to give his reasons for Perdue's termination.33 This could also ex- plain the Union's apparent unwillingness to process Per- due's grievance. As to Lowry, his encounter with Drennon while in the armed services provided ample basis for mutual an- tagonism. Drennon's denial that any of these factors played a part in his decision to discharge these men, does not do him credit. It is not improbable that subcon- sciously, or otherwise, these considerations influenced his decision. His reluctance to admit this may be un- derstandably human, and considering the frailties of human behavior, this is not sufficient to affect his overall credibility. Granted, however, that Drennon was, in fact, motivated, in whole or in part, by the mutual antagonism which may have existed between him and these men, this motivation would negate the conclusion that he discharged these men because of their protected con- certed activities. As final proof of Respondent's discriminatory motiva- tion. the General Counsel relies on the testimony of Wil- liams, the working foreman, that on three different occa- sions, within a period of some 10 days. Drennon charac- terized Perdue and Lowry as "troublemakers." The first of these occasions, according to Williams. occurred soon after the shift meeting during which Perdue and Lowry broached the matter of work gloves and protective clothing, as well as the union bulletin board. The second, several days later, when the remark was allegedly re- peated; and, the last in a conversation shortly after their discharge, when Drennon allegedly told Williams that he had rid himself of "those two troublemakers." These re- marks, the General Counsel contends. occurring, as they did. soon after the men had engaged in protected con- certed activities, lead irresistibly to the conclusion that Drennon was motivated by a purpose to discourage em- ployees from engaging in protected concerted activities. if not from maintaining their membership in a labor or- ganization. Alternatively, the General Counsel contends that, even if the record does not establish that the discharges were motivated by union or concerted activi- ties of the two employees. Respondent's action in discharging these men was violative of Section 8(a)(1) of the Act because the discharges were provoked by the em- ployees' concerted activities. and, thus, interfered with. restrained, or coerced employees in the exercise of rights guaranteed in Section 7. Such a conclusion, however. presupposes a finding that the discharges were imposed in retaliation for the concerted activities in which the em- ployees were engaging. Moreover, it requires a finding that Drennon actually made the statements to which Wil- liams testified. The General Counsel has apparently disregarded, or overlooked, Drennon's testimony that on May 5, the day after he showed Perdue and Lowry Ray's written com- plaint about the condition of the Banburys, Drennon told Williams that the two men were getting Respondent into trouble with Firestone because they were not doing their work. This was the occasion on which Williams asked Drennon to talk to the two men, and Drennon replied that he had already done so, and had shown them Ray's writ- ten complaint. Also, in Miller's memorandum of May 1 to Drennon, as well as in their conversation regarding this complaint. Miller stated that "this last week got us into trouble." Drennon admitted, therefore, telling Williams that Perdue and Lowry had been causing trouble. Moreover, there is undisputed testimony that on April 27, and before the first meeting of the graveyard shift, Respondent's Division Manager LaBarbera telephoned Secretary-Treasurer Gutierrez of the Union. During this conversation. LaBarbera told Gutierrez that the Com- pany was having trouble with Perdue and Lowry whose work performance was unsatisfactory, and that he might be obliged to take corrective action. Gutierrez asked LaBarbera to "do the right thing." -give them a proper warning, and to try to straighten them out. LaBarbera replied that this had already been done but that the men were not doing a good job. Against this background, it is altogether plausible to as- sume that Drennon had expressed his concern to Wil- liams that the two men were causing trouble for the Com- pany. It did not require any great stretch of the imagina- tion for Williams to transmute Drennon's remarks into the term "troublemaker." Significantly, Williams testified that Drennon did not elaborate on this remark, and Wil- liams himself did not pursue the matter. It is also noted, that at a meeting on May 10, 3 days be- fore the discharges, LaBarbera told the union representa- tive of the Respondent's trouble at Firestone. to which he had referred in his earlier phone call, and particularly sin- gled out for mention Bynoe, who had already been ter- minated, and Perdue and Lowry. LaBarbera testified. without contradiction, that he told Gutierrez that "the customer was getting real unhappy and putting the pres- sure on Mr. Drennon." and that something would have to be done. When Gutierrez asked why the men could not be transferred to other jobs, LaBarbera told him that he had no other place for them, adding that there was no point in transferring a man who is not performing his job properly. When all this has been said, it must still be borne in mind that the burden is upon the General Counsel to establish by a preponderance of the credible evidence that, in discharging these employees. Respondent was prompted by considerations proscribed by the Act rather than by valid and legitimate reasons. Correlatively, there is no duty on the part of Respondent to prove that the em- ployees were discharged for unsatisfactory work, or other just cause , although it must be said that Respondent has gone a long way in substantiating the legitimacy of its position. It is noteworthy that at the meeting between Respond- ent and the union representatives on May 10, although 33 See footnote 21 AMERICAN BLDG. MAINTENANCE CO. 153 Gutierrez admitted in response to a statement by LaBar- bera that , under its contract with the Union , Respondent was not required to furnish gloves, boots. coveralls, or other protective clothing to its employees at the Firestone plant. LaBarbera said that on Drennon's recommenda- tion Respondent had agreed to supply gloves and boots to the men working on the Banburys , adding that Drennon had already furnished them with gloves on May 8. In addition , at the same meeting, when the Union requested premium pay for the men working in the Ban- bury pit, while again pointing out that this was not pro- vided for in the contract, LaBarbera told Gutierrez that Drennon had raised the question during the past summer, and that, despite the fact that it was under no obligation to do so , Respondent had decided to grant -these men a 10-cent-an-hour premium, effective July 1. albeit Respondent could not expect reimbursement for these additional wages from Firestone . On July 1, Respondent fulfilled its promise. To suggest that Respondent made these concessions as a means of alienating its employees from their bargaining agent or as a means of discouraging or dissuading employees from engaging in concerted ac- tivities would be the height of cynicism. Viewed against the amicable collective-bargaining rela- tions between Respondent and the Union ; the existence of a bona fide collective-bargaining agreement; Respond- ent's willingness to provide the Banbury employees with working gloves, despite the questionable provisions in the contract; Respondent's concession in issuing some type of work gloves on May 8, and its agreement at a meeting between LaBarbera and Gutierrez on May 10 to furnish gloves and boots to the men working on the Banburys; its voluntary grant at the same meeting of a 10-cent-an-hour premium. effective July 1, to the Banbury workers, for which it could not claim reimbursement from Firestone, and despite the fact that it could have insisted upon its rights under the union contract ; and finally , in light of the absence of any union animus or hostility toward the Union, a conclusion that Respondent discharged Perdue and Lowry because of their protected concerted activities rather than because of their unsatisfactory work per- formance is unwarranted by this record.34 On the basis of the foregoing , and upon the entire record, it is hereby found that the General Counsel has not sustained his burden of proof in establishing that Per- due or Lowry were discharged because of their protected concerted activities , or that, by discharging these men, or by any of the other conduct in which it engaged, Re- spondent has interfered with, restrained, or coerced employees in the exercise of rights guaranteed in Section 7 of the Act. Accordingly , it will be recommended that the com- plaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent, American Building Maintenance Company of California is, and at all times mentioned herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2) and 2(6) of the Act. 2. Building Service Employees Union, Local 77, AFL-CIO,, is, and at all times mentioned herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) or (3) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is hereby recommended that the complaint in this matter be dismissed in its entirety. 34 Although, as has been noted , the collective-bargaining agreement provided a grievance procedure , no finding is based upon the failure of the discharged employees to exhaust their remedies in the grievance procedure. It is not wholly clear whether formal grievances were ever filed by these employees with the Union , although Perdue's letter to Gutierrez of May 29 seems to suggest that Perdue , at least, initiated this procedure It might be inferred from the fact that the charge in this proceeding was filed by Perdue, as an individual, on behalf of himself and Lowry, that the Union apparently declined to do so. Again, as in the case of Drennon, there is an undercurrent of hostility between Perdue, and possibly Lowry , toward Gutierrez, who may have felt his own position with the Union imperiled by Perdue's aggressive conduct. This may ac- count for the Union 's failure to prosecute the grievances or file a charge in this proceeding The abrasive tone of Perdue's letter to Gutierrez, quoted earlier , was scarcely calculated to enlist the Union's support In any event, none of these factors has been relied on in arriving at the conclu- sions in this matter