Larson Industries, Inc.

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rolite, Inc., a wholly owned subsidiary of Larson In- dustries, Inc. and International Woodworkers of America, AFL-CIO. Case 18-CA-2731 June 16, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 29, 1969, Trial Examiner Bernard J. Seffl issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and supporting arguments, and 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, argu- ments, and brief, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. Contrary to the Trial Examiner, we find that the Respondent discharged Raymond Clonkey in viola- tion of Section 8(a)(4) and (1) of the Act. In all other respects, we adopt the Trial Examiner's findings and recommendations dismissing the other allegations of the complaint. When Raymond Clonkey was hired by the Respondent on November 11, 1968, he lived with his father, a nonemployee, on a country road some 2 miles from the nearest highway. They had no telephone, and Clonkey, without the use of an au- tomobile, and frequently impeded by snow condi- tions, walked or was driven by his father to the highway intersection, where he obtained rides to work from passing employees. In 1968, prior to the commencement of Clon- key's employment, employee Roy Elmerson had en- gaged in organizing the Respondent's employees, a fact of which it was aware. During that period, the Respondent twice discharged or laid off Elmerson and twice reinstated him, following investigations by the Board agents. Elmerson's first separation im- mediately followed statements made by Plant Su- perintendent Ryan that no union was needed, Ryan's statement being in response to Elmerson's expression of strong union preference. The second separation followed a direct confrontation between Elmerson and Plant Manager Dahlke, during which Dahlke accused him of soliciting for the Union, and told him he had in his possession a statement to that effect. The statement was written by an em- ployee pursuant to Dahlke's dictation. Following his second return to work in October 1969, Elmer- son continued, with union assistance, to organize the Respondent's employees. He made house calls and was the only employee who was active in secur- ing union authorization cards in support of a representation petition filed by the Union in Case 18-RC-7736.3 Following Clonkey's hire, Elmerson interested him in joining the Union and attending union meetings, some of which were held in Clon- key's house. Clonkey frequently rode to work with Elmerson. In late January 1969, the Clonkeys moved to a more accessible house. His rides to work with El- merson increased in frequency, and by the time of his discharge on March 17, 1969, were an almost daily occurrence. The Respondent was aware of this arrangement inasmuch as Clonkey's absences were reported in advance to Elmerson as the latter passed by on his way to work, and relayed by El- merson to the plant authorities on his arrival. Between November 11, 1968, the date of Clon- key's hire, and March 17, 1969, the date of his discharge, Clonkey had 13 excused absences and 13 unexcused absences. Following the expiration of Clonkey's 6 weeks' probationary period, the Respondent considered discharging him because of his poor attendance record, but instead granted him two successive extensions of 2 weeks each until ap- proximately January 27, 1969. At that time, the Respondent again considered discharging Clonkey because of his poor attendance record, but decided instead to keep him on its payroll. This date ap- proximately coincided with Clonkey's removal to I This case came on for hearing before Trial Examiner Boyd Leedom After the close of the hearing Trial Examiner Leedom died The Trial Ex- aminer having thus become unavailable to the Agency, within the meaning of Sec 554(d) of the Administrative Procedure Act (5 U S C , Sec 554(d), Trial Examiner Bernard J Seff was assigned to consider the record and to prepare a decision in accordance therewith ' We note that the Trial Examiner's Decision in one instance inadver- tently referred to the date of the reconvened hearing in Case 18-RC-7736 as March 4, 1969, rather than March 5, 1969, the correct date Absent record evidence , we reject the Trial Examiner 's finding that Raymond Clonkey was an observer in the election conducted in Case 18-RC-7736 3 In the ensuing election the Union won by a vote of 39 to 30 and was certified as the exclusive bargaining representative of the Respondent's production and maintenance employees 183 NLRB No. 48 ROLITE, INC. the more accessible location. Thereafter, his at- tendance record showed a marked improvement, and for 5 weeks preceding the final week of his em- ployment he had only two absences; one was due to a hospital visit on March 1 on instructions from Stan Kistler, his foreman, after Clonkey had re- ported for work sick; the other was due to his at- tendance on March 5 to testify at the Board-con- ducted hearing in Case 18-RC-7736. On March 4, Clonkey told Foreman Kistler that he, Clonkey, would probably have to attend the hearing in Case 18-RC-7736 the next day. That same afternoon, Kistler called him into his office, said that he had missed a lot of work, and had him sign a written warning that if he missed I more day without calling in to the plant he would be discharged. Kistler testified that he tore up the statement because he did not like the idea of having Clonkey sign such a statement, and substituted an unsigned copy in Clonkey's personnel file. When asked the date of the warning, Kistler testified that he could not remember precisely, stating that the warning followed at least 8 or 9 days of perfect at- tendance. Excluding the hospital visit, the record in fact shows 4 weeks of perfect attendance before the warning. An exhibit, identified as a copy of a nota- tion in Clonkey's personnel file, states that Kistler gave Clonkey a verbal warning on March 4, 1969, for unexcused absenteeism. When Dahlke, having conceded the fact of the warning, was asked why it occurred during a period of perfect attendance, which he also conceded, he testified that the warn- ing "possibly did not happen." At the representa- tion hearing in Case 18-RC-7736, on March 5, Clonkey was called as a witness and testified to facts supporting the supervisory ineligibility of Foreman Johnson and Dahlke to vote in the forthcoming election. Clonkey was absent from work, due to illness, during the entire week ending March 15, 1969, the final week of his employment. On Monday, Tuesday, and Wednesday of that week, other em- ployees gave the Respondent advance notice of Clonkey's daily absences, as requested by his father. Elmerson reported two of the three absences. On Thursday and Friday of that week, however, Clonkey's father did not get to the highway to report the absences and, as a result, they were unreported and Clonkey was charged with two unexcused absences . On the following Monday, March 17, 1969, the Respondent, after re- The Trial Examiner refused to consider the background facts concern- ing Elmerson as evidence of union animus on the apparent ground that the General Counsel failed to plead it in the complaint As union animus is a purely evidentiary matter, and therefore need not be pleaded , we find the 391 minding Clonkey of its warning about future absences, discharged him. The Respondent relies on Clonkey's two final unexcused absences as the specific grounds for jus- tifying Clonkey's discharge. The Trial Examiner, however, considers Clonkey's general unreliability as an employee, as evidenced by his entire absentee record, as the grounds for finding a lawful discharge. We do not agree with the Trial Ex- aminer's rationale which we find too broadly based, in that, apart from the fact that the Respondent re- lies only on Clonkey's absences of March 13 and 14, it fails to explain the Respondent's apparent acquiescence in Clonkey's earlier absences, as evidenced by its rejection of proposed discharge ac- tion on at least two occasions and its grant of two probationary extensions and a further continuation of his employment in lieu thereof, despite continu- ing absences. In evaluating the two final unexcused absences relied on by the Respondent as grounds for discharging Clonkey, certain facts compel us to conclude that they were not the actual reason for Clonkey's discharge. These facts include the Respondent's aforementioned acquiescence in Clonkey's earlier absences; its union animus as evidenced by its conduct toward Elmerson;' its awareness of Clonkey's almost daily association with Elmerson, who it knew was a union organizer; Clonkey's perfect attendance record for 4 weeks prior to March 4, except for the hospital visit; the Respondent's unprovoked oral and written warning of March 4, in apparent disregard of his good at- tendance record; its evasive testimony concerning this warning; the timing of the warning, immediate- ly after the Respondent learned of Clonkey's intent to testify on the following day in Case 18-RC-7736; Clonkey's testimony in that proceed- ing supporting the voting ineligibility of the Respondent's supervisory personnel; the Respond- ent's awareness of Clonkey's sickness as the cause of his absence during the final week of his employ- ment; and the contrast between the consideration shown to Clonkey on the occasion of his March 1 sickness, only 3 days before the Respondent's awareness of Clonkey's intent to testify, and the peremptory conduct it displayed on the occasion of his March 17 discharge. In these circumstances, we find that the General Counsel has sustained the burden of proving that the Respondent unlawfully discharged Clonkey for attending the hearing in Trial Examiner's position without merit We further find, contrary to the Trial Examiner, that strong union animus existed , as evidenced by the Respondent's conduct respecting Elmerson 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case 18-RC-7736, in violation of Section 8(a)(4) and ((1) of the Act. Upon the basis of the foregoing findings, and on the record as a whole, we make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging employee Raymond Clonkey because of his membership in, support of, and ac- tivities on behalf of the Union and because he had given testimony under the Act, the Respondent has engaged in unfair labor practices defined in Section 8(a)(4) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) 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 Respond- ent, Rolite , Inc., a wholly owned subsidiary of Lar- son Industries , Inc., Grantsburg, Wisconsin, its of- ficers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Woodworkers of America , AFL-CIO, or any other labor organization , by discharging employees because they give testimony under the Act, or in any other manner discriminating against employees in regard to hire or tenure of employment or any terms or conditions of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization , to form labor or- ganizations, to join or assist the Union, or any other labor organization , to bargain collectively through representatives of their own choosing , and to en- gage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Raymond Clonkey immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay he may have suffered by reason of the dis- crimination against him at 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Grantsburg, Wisconsin, plant co- pies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Re- gional Director for Region 18, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 18, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith.' ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in In- ternational Woodworkers of America, AFL- CIO, or any other labor organization, by discharging employees because they give testimony under the Act, or in any other manner discriminating against employees in re- gard to hire or tenure of employment or any terms or conditions of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, or to engage in other con- certed activities for the purposes of collective ROLITE, INC. 393 bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Raymond Clonkey immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him. All of our employees are free to become or remain , or refrain from becoming or remaining, members of the above-named Union, or any other labor organization. nization, and certain facts concerning the Com- pany's business. The case came on for hearing on May 27, 1969, in Grantsburg, Wisconsin, before Trial Examiner Boyd Leedom. Subsequent to the close of the hear- ing Trial Examiner Leedom died. The Trial Ex- aminer having thus become unavailable to the Agency, within the meaning of Section 554(d) of the Administrative Procedure Act (5 U.S.C. Sec. 554(d), Trial Examiner Bernard J. Seff was as- signed to consider the record and prepare a deci- sion in accordance therewith. Upon the entire record and in consideration of the briefs, I make the following: FINDINGS OF FACT ROLITE, INC., A WHOLLY OWNED SUBSIDIARY OF LARSON INDUSTRIES, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-725-2611. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BERNARD J . SEFF, Trial Examiner : International Woodworkers of America , AFL-CIO ( herein called the Union ), filed its original charge in this case on February 11, 1969; a first amended charge was filed on March 19 , 1969; and a second amended charge was filed on April 14, 1969 , which alleges violations of Section 8(a)(1), (3), and (4). The Re- gional Director for Region 18 of the National Labor Relations Board, herein called the Board, on April 24, 1969, issued a complaint which alleges that Rolite , Inc., a wholly owned subsidiary of Lar- son Industries , Inc., hereinafter called the Re- spondent or Rolite , had engaged in certain unfair labor practices within the meaning of Section 8(a)(1), (3), and (4). On April 28 , 1969, the Re- spondent filed its answer denying the commission of any unfair labor practices and admitting it was engaged in commerce , the Union is a labor orga- I. THE BUSINESS OF RESPONDENT Respondent is a Wisconsin corporation having its principal office and place of business at Grants- burg, Wisconsin, where it is engaged in the manu- facture of travel trailers. During the past calendar year, which period is representative of its opera- tions during all times material hereto, Respondent purchased materials from points directly outside the State of Wisconsin which were valued in excess of $50,000 and sold and shipped goods which were valued in excess of $50,000 to points directly out- side the State of Wisconsin. Respondent is now and has been at all times material herein engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, International Woodworkers of America, AFL-CIO, is, and at all times relevant hereto has been , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts An election was held among the Respondent's truckdrivers on April 16, 1968, in the course of which the Teamsters Union was defeated. The elec- tion aroused the curiosity of the Respondent's other employees and especially that of Roy Elmerson. El- merson had a discussion with the then plant su- perintendent, Chuck Ryan, after the election and he expressed disappointment that the Union had lost. In the discussion that took place between El- merson and Ryan concerning unionism at the Rolite plant, Elmerson told Ryan he could not un- derstand why anyone would vote against a union at Respondent's plant. Ryan argued that no union was needed since the employees could take up grievances anytime they wanted without a union. That evening Elmerson telephoned Woodworkers Representative Hicks to ask if an election among 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the drivers would preclude the holding of an elec- tion among other employees. Hicks said that this would not be the case. Elmerson was then in the process of getting cards signed for the Wood- workers Union. The following day, April 17, 1968, Ryan called Elmerson to his office , said something to the effect that it had been nice working with him , and then in- formed Elmerson that his services were no longer needed. As the result of the discharge of Elmerson the Union filed a charge against the Respondent. The end result of the investigation of this charge was an agreement whereby Elmerson was reinstated with backpay. When he reported for work the plant manager, Dahlke, in the presence of Ryan and Schultz, two of Respondent's supervisors, told El- merson that he was one of the poorer employees and in the event it became necessary to lay off em- ployees due to poor business Elmerson was going to be the first to get the axe. A day or two after the above incident Elmerson was again called to Dahlke's office where he was accused of urging the employees to join a union. El- merson denied this charge. Thereupon Dahlke said he had in his possession a statement signed by one of Respondent's employees to the effect that El- merson was soliciting for the Union . Learning that the employee who signed the statement was one Duane Stellrecht , Elmerson arranged to have Stell- recht come to his home to explain the circum- stances surrounding his signing of this statement. It seems that Stellrecht was visiting Foreman Schultz home where he was asked if Elmerson was still in- terested in the Union. Stellrecht said he was. Sub- sequent to this episode, Stellrecht was called to Ryan's office where he found Schultz was also present. Stellrecht testified that he was having problems with his work at that time and that Elmer- son had told him that there was one thing which would take care of his difficulties. Stellrecht presumed that this "one thing" Elmerson was talk- ing about was the Union. Ryan asked if Stellrecht would sign a complaint against Elmerson . Stellrecht protested that he did not believe in signing complaints against fellow em- ployees. Ryan handed Stellrecht a pencil and he wrote down what Ryan instructed him to write. Subsequent to this occasion, about May 24, 1968, Elmerson was brought to Ryan's office and was again told by Ryan that he was going to be let go. Elmerson asked why and was told this was due to a production cutback. Elmerson asked if he was being fired or laid off and Ryan told him he was discharged. Once again the Union got in touch with the National Labor Relations Board's Regional Of- fice on his behalf. Shortly thereafter, Elmerson received a letter from Dahlke which apologized for any misunderstanding about his status and informed him he was laid off and not discharged. While still in layoff status, in October 1968, Elmerson learned that the Respondent was calling back laid-off em- ployees and was also hiring new employees. He called the union representative and reported Respondent's failure to call him back. The National Labor Relations Board's agent got in touch with Respondent and approximately a week later Elmer- son received a call from Ryan requesting that he return to work which he did on October 29, 1968. Elmerson said that during the layoff period the Union's organizational activities were curtailed because it was not known which employees would be employed again . After Elmerson returned to work the union representative, Hicks, went into the Grantsburg area and assisted Elmerson in making house calls and getting cards signed for the Union. The Union filed a petition on January 16, 1968,1 for an election in Case 18-RC-7736. Meetings were held among the union representatives, the Re- gional Office, and Respondent which resulted in the signing of a consent-election agreement. One of the individuals who was designated as an observer in the representation case was Raymond Clonkey. The hearing took place on March 5. Clonkey appeared and testified concerning an incident when he was first discharged by Wayne Johnson and immediate- ly thereafter rehired by Stanley Kistler . The Union won the election, which was conducted on May 2, by a vote of 39 to 30 and was certified as the exclu- sive bargaining representative of the employees in the appropriate bargaining unit. Despite the number of pages in the transcript devoted to detailing the Respondent 's activities with respect to Elmerson it is significant to point out that there is no allegation in the complaint charging that the events concerning Elmerson con- stitute evidence of employee union animus . All the record shows in this connection is that a number of charges of unfair labor practices were filed against Respondent all of which were settled without the is- suance of a complaint. B. The Discharge of Raymond Clonkey Clonkey was employed by the Respondent on November 11, 1968, and was discharged on March 17. During the time of his employment he lived with his father at two different addresses located outside of Siren, a small town in Burnett County, Wisconsin , which is 18 miles from Respondent's plant. Until late in January the Clonkeys lived on a country road 2 miles away from Wisconsin Highway. They had no telephone. Clonkey had no automobile . He managed to reach the main highway either by walking the 2 miles or, on occa- sion, his father would drive him there. Clonkey would get a lift to the plant from a passing em- ployee. Clonkey frequently came to work with Roy Elmerson who interested him in joining the Union. He attended union meetings at the Rainbow Cafe and held some in his home. ' All dates are in 1969 unless otherwise specified ROLITE, INC. 395 During the 4-1/2 months of his employment he was absent from work 26 times : 13 of his absences were without notification to the Respondent and 13 were with notice . Clonkey testified that there was a great deal of snow in the winter months , sometimes it was so deep that he could not get to the highway, and since he had no telephone and sometimes could not get word through to the men who gave him lifts these facts explained his failure to notify Respondent that he would not be able to make it to the plant. At the end of his probationary period Clonkey's foreman told him that his excessive record of absences made it necessary for the Respondent to let him go. Another foreman, Kistler, said he wanted to give Clonkey another chance to improve his attendance and he was therefore transferred to Kistler 's department and given an additional 2 weeks to demonstrate his ability to get to work. He was also told that if he had one more unexcused absence during this period he would be discharged. He again missed 2 days of work . Clonkey requested permission to appear as a witness for the Union at the representation hearing which took place on March 4 . It is not disputed that Clonkey was sick a good deal, had been to see his doctor , and had been to the hospital during his last period of employ- ment. As noted above he was discharged on March 17. Whatever else may be said about Clonkey's discharge it certainly cannot be argued that Respondent made any effort to "get " Clonkey and this fact is underscored by pointing to his having been given an additional 2 weeks to improve his at- tendance record . It should further be noted that Clonkey's union activities were minimal and the preponderance of the evidence does not establish that his union sympathies were a contributing fac- tor in his discharge. While some of his absences may have been ex- cused, their sheer number supports Respondent's contention that he was unreliable and could not be depended on to man his work station on a regular basis . It should also be pointed out that the record as a whole fails to indicate that the Respondent manifested union animus . It would therefore appear that the General Counsel has not satisfactorily established that Raymond Clonkey was discharged for union activities and I shall therefore recom- mend that this allegation of the complaint be dismissed. The complaint alleges that, while the Respondent discharged Clonkey ostensibly because of excessive absenteeism , the real reason for his discharge was because of his union activities and the testimony he gave at the hearing in the representation case. Both of these contentions of the General Counsel are al- leged as violations of Section 8(a)(1), (3), and (4) of the Act. As appears above , Clonkey's activities on behalf of the Union were minimal . This leaves for disposition of the allegation that he was discharged because he gave testimony in the representation case which was favorable to the Union. The record shows that on the morning of March 4, Clonkey told Kistler he would probably go to the hearing the following day to testify. General Coun- sel argues in his brief that at 3:15 p.m. Kistler called Clonkey into his office, explained that he had missed a lot of work, and had him sign a state- ment to the effect that if he missed 1 more day without calling in to the plant he would be discharged. Kistler testified that he subsequently tore up this statement because he did not like the idea of having Clonkey sign such a document. From these facts the General Counsel states that the March 4 warning was motivated by some reason the Respondent does not care to explain. Respondent had been lenient with Clonkey and in fact the record shows that he had been given two extensions of time to improve his attendance. Shortly after Clonkey gave testimony contrary to that offered by Respondent he finds a toughened attitude regarding his absences which leads to his discharge. The General Counsel concludes that Respondent became stern and unforgiving because Clonkey testified the way he did about the supervisory status of certain employees and that this was the hidden motive which constitutes a violation of Section 8(a)(4). The Respondent argues that Clonkey's discharge was merely the culmination of a long his- tory of absences which improved but did not end even though the employee was given two extensions of time to straighten himself out. The testimony of Clonkey was not provocative of employer ire because it was prounion and, in any case , the in- ference drawn by the General Counsel is not sup- ported by a preponderance of the evidence. I recommend that this allegation of the complaint be dismissed. C. The Discharge of Betty Roberts Roberts was hired by the Respondent on Sep- tember 21, 1966, and was terminated on February 5, 1969. She started out as an employee in the sub- assembly department earning $1 .30 an hour and at the time of her discharge she was earning $2.10 an hour. In the course of her employment in this de- partment she was promoted to leadlady and finally, at her own request, she was transferred to the shipping department . It is not disputed that she was a good employee. Mrs. Roberts and her husband were among the first of the Respondent 's employees to sign up with the Union. She was frequently seen with employee Elmerson and gave him the names of prospective union members , and it is admitted that she discussed the Union with her foreman, Wayne Johnson. According to Respondent, Roberts was discharged for flatly refusing to go to the subas- 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sembly department to make up a trailer end socket. In order to complete an order for a customer Respondent found that it was short a trailer end socket. Roberts was asked to go to her old depart- ment to fabricate this item. Roberts' version of the incident was that when Foreman Johnson requested her to perform this duty she said that she would prefer not to go to the subassembly department but she would go if she had to. Two of Respondent's su- pervisors and the plant manager all testified that she flatly refused to go because she said that when she was in that department she made up whatever was necessary and she did not want to do some- body else's work for her. She also said something about the fact that there was a personality conflict between herself and an employee named Judi Kis- tler. Upon her refusal to do the work requested John- son reported her to Kistler and both of these super- visors repaired to the office of Plant Manager Dahlke where they explained the incident to Dahlke who asked that Roberts come to his office. Dahlke told Roberts that if he understood the situa- tion correctly she had flatly refused to follow the instructions of Johnson. The three supervisors all testified that in response to Dahlke's statement Roberts said "Yes." Dahlke then asked Roberts if she would refuse to do the job when he (Dahlke) gave it to her. She again said, "Yes." At this point she was discharged. The record shows that Dahlke testified as fol- lows: "I understand there is a problem that you refuse to take a direct order from Wayne John- son," and she said yes, unequivocally in here, in my estimation it was an unequivocal yes, she refused to take an order from Wayne Johnson. I don't remember word for word what was stated there but I wanted to find out really did she still refuse it and she repeated again that she did refuse it and there was no ifs, ands, or buts about it, I was so flabbergasted I didn't know what to say, in fact, it took 15, 20 seconds to recover. She offered no rebuttal as to her condition, rebuttal as to whether she would go to work if some other situation was changed or anything like this, it was plain she wouldn't go to work and I said, "You leave me no choice but to terminate our relationship.".. . At the time, there is one thing I missed, when Stan notified me that she refused to take a direct order from Wayne it flashed through my mind to the extent that just a month before we had a similar type of situation happen with the same employee, she refused to do her job. I thought oh, boy, here we go again, this is referred back to the prior testimony where she refused to work up at the end of the day, she was given a verbal order as testimony has brought out, so there was a history on her, as far as I was concerned , she was a problem em- ployee in regards to not wanting to take direction .... The prior incident alluded to by Dahlke refers to an occasion when, close to the end of her shift, Roberts was asked to go down to another depart- ment to get some curtains . She refused because she was at the end of her workday and left a note for her supervisor telling him to get the curtains him- self. If the version of the incident that resulted in her discharge is correct Roberts denied that she refused to go to the subassembly department but said she preferred not to go to that department but would go if she were ordered to do so. Assuming arguendo that her statement is correct and it has been testified that the Respondent needed a trailer end socket in order to complete a customer's require- ments, then the inevitable next remark of Johnson would have been to order Roberts to go and fabricate the necessary part. In that event she would have followed Johnson's instruction and this entire incident would not have occurred. Roberts' version strains credulity and is inherently implausi- ble. The record supports Respondent's recital of the events that led to Roberts' discharge. Roberts' union activities were insignificant. It is clear that a preponderance of the evidence in the record does not establish that her union sympathies were a contributing factor in her discharge. I there- fore recommend that this allegation in the com- plaint be dismissed. D. Respondent's Alleged 8(a)(1) Activity Clonkey testified in February that Stanley Kistler found a union leaflet in a trailer that his fellow em- ployees had placed there and Kistler had told a group of them to get that "garbage" out of there. Kistler allegedly also was supposed to have stated at this time to the group that if the Union ever got in the Company would move out. On another occa- sion in February Clonkey testified that he and his brother were reading a notice about the Union on the bulletin board in the service room when Super- visor Harold Hall approached and told them they did not need to read it. At this point Hall allegedly related a story about a plant in southern California that had moved when the Union got in and that is what would happen in the Respondent's plant if the Union got in there. A few days prior to the hearing in the instant case Roy Elmerson testified that Su- pervisor Harold Hall approached them and inquired if he was going to be called to the hearing to testify about spreading the rumor that the plant would close if the Union were successful. Kistler and Hall categorically denied having made the statements attributed to them. In the face of the above direct conflict in the testimony of Clonkey versus Kistler and Hall the General Counsel should have noted that the state- ROLITE, ment in February was allegedly made to a "group" of employees that if the Union ever got in the Com- pany would move out . Testimony from others in the group might have served as corroboration . No such testimony was offered. Similarly Clonkey testified that he was present with his brother at the time Hall allegedly made a similar comment. Clonkey's brother might have been called to corroborate what was testified to by Raymond . Again no such testimony was adduced . At the very least the General Counsel failed to prove these allegations by a preponderance of the evidence on the record considered as a whole and I would therefore recom- mend that these allegations of the complaint be dismissed. Upon the foregoing findings of fact and the entire record in the instant case, I make the following: INC. 397 CONCLUSIONS OF LAW 1. At all times material herein, Respondent has been engaged in commerce as an employer within the meaning of Section 2(6) and ( 7) of the Act. 2. At all times material herein , the Union has been a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a preponderance of the evidence that the Respond- ent has engaged in the unfair labor practices al- leged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in the case ,. I recommend that the complaint be dismissed in its entirety.