Iowa Beef Processors, Inc.

IOWA BEEF PROCESSORS, INC. Iowa Beef Processors, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 340, AFL-CIO. Case 17-CA-4172 November 10, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On July 15, 1970, Trial Examiner Milton Janus issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in any of the 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 Charging Party filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I In agreeing with the Trial Examiner that the complaint be dismissed in its entirety, we do not rely on a letter from the Regional Director for Region 17, refusing to issue a complaint against the Respondent based upon charges filed by this International Union (Case 17-CA-4135) 2 The Charging Party excepts to the credibility determinations of the Trial Examiner After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly, we find no basis for disturbing these findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd . 188 F 2d 362 (C A 3) We note that the Trial Examiner in one instance erroneously referred to Minor as Moore, and erroneously stated in footnote 8 that Minor was tardy on November 6, on which date he was absent for an excused illness TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 521 MILTON JANUs, Trial Examiner: Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 340, AFL-CIO (hereafter called the Union or the Charging Party), filed a charge on December 22, 1969, and an amended charge on February 24, 1970. A complaint based thereon was issued by the Regional Director for Region 17 on March 4,' 1970, againstlIowa Beef Packers, Inc.1 (hereafter, the Respondent or the Company), alleging violations of Section 8(a)(1), (3), and (4) of the Act. I conducted a hearing in this matter at Emporia, Kansas, on April? and 8, 1970. Briefs were filed after the hearing by the General Counsel, the Respondent, and the Charging Party, and have been carefully considered in my determina- tion of the matter. The General Counsel and Charging Party also filed motions to correct the transcript of the hearing in certain respects and, there being no opposition, these are hereby granted. Upon the entire record in this case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent is a Delaware corporation which is engaged in the slaughtering and processing of beef at a number of plants in Midwestern States, including the plant at Emporia, Kansas involved here . In the conduct of its business at the Emporia plant it annually purchases goods and services valued in excess of $50 ,000 directly from outside the State of Kansas , and annually ships goods directly to customers outside the same State which are valued in excess of $50,000. I find that Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES Background and Issues The Company began beef slaughtering and processing operations at its new plant at Emporia on May 15 , 1969.2 Almost immediately, a campaign to organize the plant employees was begun by the Union, and a petition for a Board-conducted election was filed on July 11. On August I The answer to the complaint avers that the corporate name of the Respondent has been changed to that shown in the caption of this case, and that it is a Delaware, rather than an Iowa , corporation, as stated in the complaint On motion of the General Counsel, the complaint was thereupon amended at the hearing to reflect these changes 2 Unless specifically noted otherwise, dates and events referred to all occurred in 1969 186 NLRB No. 48 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 20, a representation hearing was held which was attended by seven plant employees who had been served with subpenas by the Union. The complaint alleged that one of these seven employees, Kenneth Minor, was suspended from work for 3 days, August 19-21, and that he, and another of the seven, Charles Moore, were discharged on November 26, because of their adherence to the Union and because they gave testimony at a Board hearing on behalf of the Union. The complaint also alleged that the plant's personnel director, Copenhaver, coercively interrogated Moore, on or about August 16, as to his and other employees' union activities. Respondent's defenses are that Minor's suspension and his and Moore's subsequent discharge were due to their unexcused absences and tardiness, and were made in accordance with its publicized rules on the subject, and that they were treated no differently than other employees with similar attendance records. As for the allegation that Copenhaver interrogated Moore, the Company denied that such conversation ever occurred. Description of Plant Operations During the period involved here, from May to November 1969, the Emporia plant employed about 120 employees, and for much of that period it operated 10 hours per day, 6 days per week. Operations on the kill floor begin with the knocker whose work starts at 5:25 a.m. The carcass is suspended on a conveyor which moves it to the various stations where it is broken up. There are about 100 different stations where work on the carcass is done, and it takes about 40 minutes to complete all operations on a single carcass. Each employee is required to be ready for work at his station time, which is when the first carcass of the day is due to reach his position. Thus, the last employees on the line are expected to be at their station, ready to work, just about 6 a.m. If an employee is absent or tardy, another employee must double up or a substitute must be immediately obtained.3 Company Rules and Practice on Attendance The plant's attendance policy was formalized early in June with the issuance of a four page letter entitled "New Employee Information" (G.C. Exh. 7). It also distributed wallet-sized cards to its employees (G.C. Exh. 6) giving them the telephone number to call if they were going to be absent or late. On the back of the card is a summary of the Company's absentee and tardiness policy. There are some differences between the two documents in details, but they agree essentially in stating the policy to be that an employee's first unexcused absence will result in a written warning ; a second unexcused absence within a 6-month period will result in a 3-day suspension; and the third, in termination. Absence because of illness is defined as unexcused if the employee calls in less than 30 minutes 3 The same thing happens if an employee is late in returning from a break or mealtime. Being late on break is treated as an unauthorized tardiness. 4 Infrequently, the device has failed to operate, so that employees who had made a timely call would not have it properly noted . When this happened, foremen were supposed to check back later with absent or tardy before his shift starts, and it may be inferred from its actual practice that, if he does not call in at all, his absence is unexcused even though it was due to illness. Other absences, for personal business or other good reasons, may be granted by obtaining the foreman's approval in advance. Three days' notice is asked for, but in practice, time off was given even on one day's notice. An employee who is going to be late must call in and give the reason for his lateness. Tardiness two or three times in 1 month calls for a warning, and continued tardiness the following month may result in suspension, while excessive lateness will result in discharge. There is some fuzziness in the Company's description of penalties for tardiness which is also revealed in its actual practice, as shown in Respondent Exhibit 3, a summary of discipline meted out to 41 employees who were currently employed at the time of the hearing. It shows that unexcused tardiness was treated somewhat more leniently than unexcused absences, and that tardiness was tolerated oftener than was strictly required under the written policy. The tolerance may have been due, however, simply to varying interpretations by different individuals as to what constitutes "continued" or "excessive" tardiness. Calls to report absence or tardiness which are made before 5 a.m. are received on an automatic recording device attached to a telephone in the personnel office.4 A clerk comes on duty in the personnel office at 5 a.m., plays back the device, prepares a call-in sheet of the calls already received, and takes down the necessary information from employees who call in between 5 and 5:30 a.m. The foreman then takes the call-in sheet just before going into the production area. There he follows the conveyor line observing what employees who have not called in are not at their stations. He records these names in a notebook and during, or at the end of the shift, he prepares his daily report on which, among other information, he lists both authorized and unauthorized absences and tardiness as of the beginning of the shift as well as others that occur during the day. The foreman's daily report then goes to the personnel office where the absence or tardiness of each employee, whether authorized or not, is transcribed on his individual attendance card. The personnel director may then call the foreman's attention to the fact that under the policy some employee may be subject to warning, suspension, or dismissal, or the foreman, on the basis of his own examination of the records or recollection of the facts, may decide on whatever disciplinary step is indicated. Sometimes, something may be overlooked and some step in the process is not taken when it could have been. The Company's Attitude toward the Union The Company admits that it tried to "sell" its employees on the proposition that they did not need a union to represent them. Its campaign to persuade them on that point consisted, so far as the record shows, of remarks made employees to learn if they had called in. The possibility exists that an occasional employee would be overlooked, and his absence noted on his attendance card as unauthorized even though he had called in on time. There is an even slighter possibility that Minor or Moore or both were so victimized, but, if it happened, I attribute it to human error rather than to a deliberate company policy to "get something" on them. IOWA BEEF PROCESSORS, INC. by company officials at orientation meetings for the employees held about May 15, when the plant opened, and again early in July for employees hired after May 15. At both orientation sessions an antiumon film "And Women Must Weep" was shown to the assembled employees.5 The complaint does not allege that any remarks made by company officials, or the showing of the film, at the orientation sessions violated Section 8(a)(1), but the General Counsel and the Union argue that they reveal the Company's animus against the Union and the likelihood that the suspension and discharges were motivated by the same desire to counter the Union's effort to represent the employees. It is true that an employer's animosity towards a union may be shown by actions which are not in themselves independent violations of Section 8(a)(1), and that it is a factor to be considered in determining whether an employer has violated the Act in other respects. (Sun Hardware Co., Inc., 173 NLRB No. 143, fn. 1.) It is a matter to be proved and, therefore, also a matter which the employer may attempt to rebut with evidence of its own. Here, the Company offered, and I received in evidence as an exhibit, a letter from the Regional Director for Region 17 refusing to issue a complaint against the Company based on charges filed by this International Union. In his letter, the Regional Director noted that his investigation of the charge had failed to reveal any scheme or design on the Company's part to chill unionism at its other plants. It seems to me then that the Company's animus against the Union at the Emporia plant does not in itself indicate any general propensity or proclivity on its part to violate the Act. Those in immediate charge of the kill floor, Foremen Frahm and Lahr, both denied that they knew that Minor or Moore had been active on behalf of the Union, and, since their activities at the plant do not seem to have been vigorously or openly pursued, I have no reason to doubt Frahm's and Lahr's testimony on that score. However, they were aware, as was Copenhaver, the personnel director, that Minor and Moore had gone to a Board hearing pursuant to subpenas served on them by the Union .6 Alleged Interrogation of Moore The only independent violation of Section 8(a)(1) litigated at the hearing is said to have occurred on Friday, August 15, when Moore brought in to the personnel office the subpena to attend a Board representation hearing on August 20. Moore testified on direct examination by the General Counsel that he brought the subpena to the personnel office and handed it to Copenhaver, who said to him, "I see you got one too." Moore was then asked if anything else occurred, and he said he could not recall. General Counsel then asked him if Copenhaver had asked him how he had got to know the Union. The question helped Moore to 5 The Board has held that under certain circumstances the showing of this movie violates Sec 8(a)(1), but that under other circumstances it is unnecessary to decide whether it does or does not Cf Kellwood Company, 178 NLRB No 8, and Hawthorn Company, 166 NLRB 251, with Louisburg Sportswear Co, 173 NLRB No. 101. The decisions of the two courts of appeals which have considered the problem have both held that the film, though extremely partisan and propagandistic , does not convey a threat of 523 recall more of the conversation. He said that Copenhaver had asked him where he had met the union man, and he told him it was at Fanestil Packing, when he had worked there and they had tried to organize a union. Copenhaver then asked him, according to Moore, where he had signed a union card, what time he got the subpena, and whether he was given it on company property. With these answers, Moore's recollection was against exhausted. On examination by the Charging Party, Moore added further information about his conversation with Copenhaver-that he not only had asked him if he had signed a union card, but who else had signed them, and what he thought about the Union. Moore said that the conversation lasted about 15 minutes. On cross-examination, Moore said that Copenhaver had also asked him if he could make a copy of the subpena, and had told him, in response to a question of Moore's, that he would not lose his job over the subpena. Moore confirmed his earlier testimony that Copenhaver had asked him who had given him the subpena, when and where he got it, and where he had met McLean, the union organizer who had served the subpena on him. Respondent's testimony concerning Moore's subpena was given by Kane, then a personnel clerk and now a supervisor trainee for the Company, and by Copenhaver. They presented quite a different picture from Moore's. Copenhaver denied that he had had any conversation with Moore about the subpena before the August 20 hearing, but that Moore had come to see him a few days after the hearing, had told him that he hadn't really wanted to go but had to because of the subpena, and had asked him if he would lose his job because of it. Copenhaver said he had told Moore there would be no problem about it. He denied asking Moore whether he had signed an authorization card for the Union or about knowing the union man. Kane testified that, a few days before the hearing, Moore had come in to the personnel office and handed him the subpena which the Union had served on him. Kane testified that he had been given one or two other subpenas that day from other employees, and so remarked to Moore about his getting one too. Kane said he needed a copy of the subpena, and told Moore to let his foreman know in advance that he would be away the day of the hearing. Kane, like Copenhaver, denied having said anything to Moore about signing a union card, or having asked him how he knew the union man or how he had been given his subpena. Although Moore's answers about the subpena incident almost had to be prodded out of him because of his initial lack of recollection and his difficulty in telling a connected narrative, I do not believe that his eventual answers on direct examination were due to suggestive leading ques- tions, as the Respondent contends. Nevertheless, even though Moore was not led, I still believe that his story is not to be credited. I found the impact of his testimony considerably weakened by his piecemeal recall of one reprisal or force and is therefore not a violation of Sec 8(a)(1). Southwire Company v NLRB, 383 F 2d 235 (C.A. 5), and NLRB v. Hawthorn Company, 404 F 2d 1205, 1213, (C A. 8), reversing 166 NLRB 251, on this point 6 Of the seven employees whom the Union had subpenaed, Minor and Moore had been discharged, three were still employed at the plant, and the other two had left under circumstances not revealed at the hearing 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD significant fact after another as counsel sought to draw him out. It sounded like an imperfectly memorized recital of events which he could not remember directly. I have been greatly concerned with reaching the proper resolution of credibility as to this incident since it would be indicative of Respondent's motivation as to the disciplinary action later imposed on Minor and Moore, and I have therefore attempted to sort out Moore's manner of testifying, which was unpersuasive, from his story as a whole, which was not implausible. My judgment nevertheless has to fall definitely on one side or the other since I cannot reconcile the opposing versions. Based on those imponderable elements denominated as demeanor, I credit the version of Kane and Copenhaver, and therefore find that Moore gave his subpena to Kane on August 15, and that neither Kane nor Copenhaver, in his conversation with Moore about a week later, questioned him about the Union or the circumstances in which he had been served with a subpena. The 8(a)(3) and (4) Allegations Employee turnover during the first 10 months of the plant's operations was quite high. With a normal comple- ment of about 120, there were during that period about 450 employees who had quit or been terminated. Of the employees at work in late March 1970, about 40 had been either warned once or had already been suspended for 3 days for violations of the Company's rules on tardiness and absenteeism. Kenneth Minor On Saturday, August 16, Minor brought in to the personnel office the subpena which the Union had served on him the day before. Minor had had his third unexcused absence on August 14, and was suspended for 3 days, Tuesday through Thursday, August 19-21. A critical issue here is whether Minor was notified that he was suspended on August 15, the day before the Company teamed he had been subpenaed, or on August 18, after it had learned about it. Before discussing that issue, it would be helpful to set out Minor's attendance record as portrayed in company documents, together with Minor's recollections on the matter. Minor had been employed in the construction of the plant and had been transferred to production work on the kill floor when operations began on May 15. His attendance record on construction work was poor, but with the beginning of production new attitudes and policies came into effect, and Minor's attendance record was wiped clean. In establishing Minor's absences and tardiness on various dates I have used his individual card record (G.C. Exh. 3), his timecards (G.C. Exh. 4), and the supervisor's daily reports for the pertinent dates (Resp. Exh. 6A-6G). These are all records prepared in the usual course of the Company's business. There are differences between them as to Minor's attendance, but they appear to me to be due to faulty copying and other human errors, and not to deliberate fabrication or falsification on the part of the Company. Thus, Minor's first unexcused absence is dated May 31 on General Counsel Exhibit 3, while his timecard for that week shows that he worked on May 31 but had not on May 30. His second unexcused absence was August 1. He was given an employee warning notice , known in the plant as a white slip. It is General Counsel Exhibit 9, is dated August 1, and reads as follows: "Employee has violated the absentee policy on call ins. He is warned that another violation will result in a 3 day suspension." His third unexcused absence was on August 14, and he was then given a second warning notice (G.C. Exh. 10) reading as follows: "Employee was absent without permission for the second time. He is receiving a 3 day suspension beginning 8-19-69. He is also being warned that the next violation will result in termination." Minor returned to work on August 22, but was away from work the next day because of an excused illness. For Thursday, September 18, his attendance card is marked "Late-no call." His timecard for that day shows that he worked 10 hours, but for September 19, it shows that he punched in about a half hour late. On October 18 and 22, he had excused absences to take his wife to and from the hospital. For October 27, there is a notation on his attendance card, "Late-no call" and his timecard shows that he was late that day. The attendance card for the next day notes that he was late, although his timecard shows that he punched in shortly before 6 a.m. However, he may have punched in before his station time and yet have been late in getting to his station. On November 6 he had an excused sickness; on November 8, he is marked with an unexcused tardiness, which is borne out by his timecard, and on November 26, he is marked with a "Late-no call." This is the day he was discharged. Moore admits he did not get in to work until about 8:30 a.m., but he testified that he called in more than 30 minutes before his station time. Minor's Credibility There are parts of Minor's testimony, not directly relevant to the major issues here, which seem to me to reveal the uncertainty and inaccuracy of his recollection and thus bear directly on the credibility of other more important items in his testimony. 1. Minor testified that he wasn't sure that the timecards which Respondent introduced as his were actually those which he had punched, because he insisted that he had put identifying marks on many of them, while those which were introduced had no such marks. However, the testimony of Respondent's pay clerk describing how the timecards for each employee are prepared at the main office by computer convinces me that Minor deliberately tried to cast doubt on the Company's effort to establish the authenticity of its records. 2. Minor first testified, without hesitance, that he had been absent without excuse on August 12, but then admitted after being shown his timecard, that he had in fact been absent on August 14. Although a seemingly unimpor- tant variation, attributable to the likelihood that one cannot recall months later exactly on what day an event occurred, it appears to me to be significant in the light of his testimony about his suspension on August 19-21. Minor would want to show that his unexcused absence in mid- August was not the real cause of his suspension, but that it was instead the Union's subpena which induced the IOWA BEEF PROCESSORS, INC. Company to suspend him. Thus, the longer the interval between his unexcused absence and the service of the suspension notice on him, the greater the suspicion that what had really motivated the suspension was the subpena which the Company learned about on August 16. As to another item of Minor's testimony, more critical to the relevant issues, I also do not credit him. Minor testified that the suspension notice was handed him on Monday, August 18, rather than on Friday, August 15, the day after his unexcused absence. Frahm, the kill floor foreman, testified that he presumed the date he gave Minor the suspension notice was August 15, which would be the day Minor returned to work after his unexcused absence as well as the day before Minor turned in his subpena to the personnel office. Frahm's presumption is undoubtedly based on his practice of handing out an employee's warning slip the day he returned to work after an unexcused absence. Minor's absence was recorded on the supervisor's daily report for August 14, and, in accordance with the normal practice, would have been transcribed on Minor's attendance card the following day, when too the appropri- ate disciplinary action would be taken. On the other hand, there is some doubt about Frahm's testimony which tends to support Minor's testimony that he was not given the suspension notice until Monday, August 18. It is that the suspension was to begin on August 19. It would be the Company's normal practice to have the 3-day suspension begin the day after the employee was handed his notice, so that in the case of Minor, since his suspension began on the 19th, it could be inferred that he did not receive his notice until the 18th, after the Company learned of the subpena and, as the General Counsel and Charging Party argue, in retaliation for Minor's presumed sympathy for the Union. The Company's answer to that is that Frahm decided not to suspend Minor for Saturday, Monday, and Tuesday because it was going to be shorthanded on Saturday and also didn't want to give him an extended weekend which he might have wanted. Here again, there are indicators with respect to Frahm's testimony which point in either direction. The Company has suspended employees for 3 days on one or both sides of a Sunday more often than it has suspended an employee in the middle of a week, but on a few occasions (see Barger in Resp. Exh. 4 and Wilburn Bell in Resp. Exh. 3) it suspended an employee for an unexcused absence in one week, beginning on Tuesday of the following week. On the whole, I am persuaded that Frahm handed Minor his suspension notice on August 15 rather than on Monday, August 18. First, Minor finally admitted that he was absent on the 14th, as the Company's records indicate. They also show that Minor had two previous unexcused absences, and that he had been given his first warning slip after his absence on August 1.7 So, when Minor returned to work on August 15, the normal procedure would be to suspend him for 3 days, nor would there be any good reason for Frahm to have held off giving him the notice for another 2 working r Minor's credibility was further impaired for me by his denial that he had ever been given a first warning slip. I find it difficult to believe that the Company would have concocted so complicated a scheme as to fake Minor's attendance record in order to lay a foundation for the second warning slip. E Whether or not Minor honestly could not recall any previous 525 days. Even though the suspension was not to begin until August 19, the Company's reason for the delay is not farfetched. I therefore find that neither Copenhaver nor Frahm knew that Minor had been served with the Union's subpena when he was told on the 15th that his suspension was to begin the following week. Minor came back to work on August 22, after his suspension. On August 23, he was absent for an excused illness. On September 18 or 19, (the latter date according to his timecard) he was late to work without having called. He was given two excused absences in October when his wife was in the hospital. Later that month he was tardy on two consecutive days, according to his attendance record. On November 8, he had an unexcused tardiness, and on November 26, the day of his discharge, he was said to be "late unexcused." At his discharge interview, Minor told Copenhaver that he could not remember ever being late other than that morning, and his tardiness that day should have been excused, he contended, because of a timely call.8 To show that Minor's discharge on November 26 was based on a pretext to conceal a discriminatory motive, the General Counsel offered testimony by an employee, Van Fossen, and by Minor, to establish that Minor called the plant that morning at least a half hour before his station time to report that he would be late because he could not get his car started. Van Fossen testified that he was in the first aid room, which adjoins the personnel office, shortly after 5 a.m. when he heard Minor identify himself on the telephone and say that he would be in later because of car trouble. Minor's testimony as to the time of his call overlaps Van Fossen's somewhat, but his estimate is that he called between 5:15 and 5:30. Minor's operation that day was "low back" and his station time was a little after 6 a.m.9 Frahm testified that he checks the call-in sheet in the personnel office just before he goes onto the kill floor at the start of the day's operations. On his daily report for November 26 (Resp. Exh. 5j), he entered Minor's name as an unauthorized absence with the notation "Late no call." He also testified that the notation meant that Minor had not made a valid call, that is, one made at least 30 minutes before his station time. It is not possible to say whether the kill started exactly at 5:25 or as late as 5:30 or how much more than 30 minutes it took for a carcass to reach the last operation but, in any event, it is my impression that an employee's telephone call to report his absence or tardiness had to be received in the personnel office at least 30 minutes before his station time, but not later than the time the foreman examined the call-in list just before he proceeded to the kill floor. The call-in list for November 26 was not produced or called for by any party. If Frahm left the personnel office about 5:25, then it is possible that Minor's call, if made between then and 5:30, was not communicated to him. This difference of about 5 minutes may serve to reconcile Minor's account that he called in no later than 5:30 and Frahm's testimony that Minor's name was not on the call-in list. This may have tardiness, the fact is that his timecards show that he was late on September 19, twice in the week ending November 1, and again on November 6. 9 Employee Foltz was assigned by Frahm to take over Minor's job about 6:15 a.m from someone who was already perfornung it. "Lowbacking" is farther down the line than Foltz's regular job that day, and Foltzs station time on that job was about 6 a in. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worked out, since Minor's operation was apparently one of the last on the line, that a call from Minor, to be considered valid, had in fact to be received as much as 40 minutes before his station time. This may have been unfair to Minor, but I am not convinced that his call on November 26, whenever it was received, was deliberately not recorded or passed on to Frahm in order to establish a basis for his discharge. Charles Moore Moore started working for the Company on May 31, and was discharged with Minor on November 26. He had testified at the Board representation hearing in August, pursuant to the Union's subpena. His attendance record (G.C. Exh. 2) indicates an unexcused absence on June 7; late three times on June 21; late unexcused on June 25 and July 19; late at break on October 20 and 21; late-no call on October 23; left early on October 24 (this was in fact excused, as will be explained later); an unexcused absence the next day, October 25; another unexcused absence on November 6; suspension for 3 days beginning November 8; and a final unexcused tardiness on November 26, leading to his discharge. There is no serious dispute about Moore's unexcused tardiness before October, although Moore's recollection about them is vague. I see no reason to believe that Moore's attendance record does not accurately reflect what was shown on his timecards and what his supervisors actually observed. Thus, assuming the accuracy of its records, the Company was justified in discharging Moore under its established policy on unexcused absences and tardiness.10 It will be noted that Moore's suspension and discharge both took place almost 3 months after his testimony at the Board hearing, and that the complaint does not allege that his suspension was discriminatorily motivated. Much of the General Counsel's case as to Moore's discharge is directed toward showing that he had valid excuses for some of his absences which are charged as unexcused, from which the inference is to be drawn that the Company was searching for a pretext to discharge him in order to conceal its desire to punish him for his union adherence. The Absence on October 25 Moore had arranged with a friend to drive him to Topeka, Kansas, on Friday, October 24, to get eyeglasses. He first asked Lahr, the assistant foreman in the kill department, for permission to go, but Lahr told him to see Frahm, the foreman. Moore then spoke to Frahm who gave him permission to go, about 11 a.m. Frahm asked him if he would be back at work later that day because he was shorthanded. Moore said he would, if his friend would drive him back in time.11 Moore did not return on Friday, and he neither called in nor returned to work on Saturday, October 25. He was charged with an unexcused absence for Saturday, and when he was given a warning slip for it, he did not say that he thought he had permission to be absent that day. This testimony came out on cross-examination the first day of the hearing. The next day, on redirect examination, Moore testified that Frahm had first asked him whether he could be back that afternoon, and had then asked him if he would be back on Saturday, to which Moore responded that he would try to make it. Frahm denied that Moore had said anything to him about the possibility of his not being at work on Saturday. I do not credit Moore's recollection that Frahm asked him if he would make it back on Saturday. Since Frahm thought that Moore might be able to return to work Friday afternoon, it seems to me that Frahm would have no reason to suspect that Moore might not make it back by the following day. The Absence on November 6 Moore had to be in Lawrence, Kansas, on urgent personal business on Thursday, November 6. He testified that he had asked Assistant Foreman Lahr on Monday and Tuesday for permission to be off, and that Lahr had granted it. Lahr testified that he had told Moore to ask Frahm, the foreman. Moore did not ask Frahm, he said, because Frahm was away from the plant that day. Moore did not come in to work on November 6, and Lahr, who made out the foreman's daily report for that day, noted Moore's absence as authorized. When Frahm checked the report, he asked Lahr about the reason for Moore's absence, and it was then discovered that Moore had not asked Frahm for permission to be away. When Moore returned the next day, Frahm handed him a suspension notice. Moore protested, saying he had gotten Lahr's permission to be off, and Frahm then said he would check it again with Lahr. Lahr then reconfirmed to Frahm that he had not given Moore a leave of absence, and Frahm told him to personally hand Moore the suspension notice. When Frahm was at work, he was the only one in his department who could authorize absences. Moore was aware of this procedure since, just a few weeks earlier, when he wanted to go to Topeka, and had asked Lahr for permission, Lahr had told him to get Frahm's approval. On being asked, Frahm had approved Moore's leave. Yet, this time, according to Moore, it was Lahr who had given him permission to take Thursday off. The issue to be decided is whether Lahr did in fact give Moore a leave of absence for Thursday, November 6, either because he exceeded his authority or because Frahm was not at work the days that Moore had asked. I do not believe that Lahr would grant time off to an employee in advance, while Frahm was on duty but would, as he had done with Moore once before, tell him to see Frahm. But was Frahm at work the Monday and Tuesday preceding November 6, when Moore says that Lahr told him he could be off? Frahm testified that he had been away from the plant on a Monday and for 2 or 3 hours the next day on some unspecified dates between October 1969 and April 1970. It is possible that it was the very Monday on which Moore 10 As a matter of fact, Moore received two first warning slips, on July overlooked when he was given another notice after he had been transferred 21 and October 27, before receiving a second, or suspension notice on to the kill department. November 7. The mixup occurred because the July slip had been issued 11 According to the Rand-McNally Standard Highway Mileage Guide, when Moore was working , in the offal department, and had been Emporia is 58 miles from Topeka. IOWA BEEF PROCESSORS , INC. 527 had asked Lahr. But Frahm would have been back at the plant most of Tuesday and all of Wednesday, available to consider Moore's request to be away on Thursday. Assuming that Frahm was not at the plant on Monday, Lahr would know when Frahm was due back and, since Moore's request was made a few days in advance, I credit Lahr's testimony that he had told Moore to get Frahm's permission to be away. Since Moore did not, Frahm was justified in treating Moore's absence on November 6 as unauthorized. Late on November 26 The day he was discharged, November 26, Moore was 2 or 3 hours late in reporting to work, without having called in. Moore's reason for being late is one I regard sympathetically, but it is obvious from what has gone before that the Company gave little consideration to good excuses for failing to call in on time. The Brucker-Kane Conversation Mendoza and Kane agree on, which persuades me that Kane's version that he was relating a pool hall rumor is more credible than Mendoza's, that Kane was revealing the antiunion motivation behind the discharges. It is their agreement that Kane began the conversation with Brucker by asking him if he had heard the latest. The question is a rhetorical one, set by linguistic convention for passing on a bit of information one has heard, without vouching for its accuracy, particularly when it is said in a joking manner. Also, Kane's testimony that he had told Brucker that the rumor concerned Minor and Moore going to a recent union meeting seems more credible than Mendoza's that Kane had said Minor and Moore were discharged for going to "that hearing," since the hearing to which Kane was referring had happened 3 months before, and would not therefore be immediately understood by Brucker. Since Kane was saying that the discharges were for having gone to a union meeting in the past week, it becomes more likely that Kane was merely relating an item of secondhand misinformation. As part of his case to prove the Company's improper motive in discharging Minor and Moore, the General Counsel called employee Mendoza to testify concerning a conversation he had overheard a few days after the discharges. On the Saturday following the discharges, at or about 5:15 a.m., Mendoza was in the first aid room, which adjoins the personnel office, when he overheard Pat Kane, a personnel clerk, talking with Brucker, a leadman. According to Mendoza, Kane asked Brucker if he had heard the latest, to which Brucker answered "no." Kane then asked him if he knew what the real reason was that they had fired Minor and Moore. Again, Brucker said "no." Kane then said it was "for going to that hearing" and went on to say that they had gotten $45 for going, and for that kind of money, he would have gone too. Mendoza was positive that Kane had not said that he was passing on a rumor as to why Minor and Moore had been discharged. As was to be expected, Brucker's and Kane's versions differ significantly from Mendoza's. According to Brucker, Kane had said to him in a joking manner that he had heard downtown (or some equivalent) that Moore had been fired because of his union activities. Brucker did not recall Kane mentioning Minor's name. Kane said he had asked Brucker, while Mendoza was there, if he had heard the latest, and then went on to say that he had heard people saying that the reason Minor and Moore were discharged was because they had gone to a union meeting in Kansas City the night, or the week, before they had been discharged, and that they were supposed to have gotten $45 for attending. Kane testified that he had heard this in a pool hall. Was Kane revealing the true, hitherto secret, reason for the discharge, or was he passing on pool hall gossip? Because of his job in the personnel office he could have been privy to Copenhaver's motives, although why he should reveal them to Brucker in earshot of a possibly unfriendly employee is hard to understand.12 There was, however, something in the conversation which both Disparity of Treatment The General Counsel and Charging Party argue that, even if Moore and Minor were technically subject to discharge under the Company's policy, it nevertheless interpreted its policy more harshly for these two than it did for others, because it intended to discriminate against them. The question requires a comparison of their records with that of other employees who had been disciplined for absence and tardiness. Recapitulating Minor's attendance record: he was given his first warning slip on August 1, after his second unexcused absence; was suspended after his next unex- cused absence on August 14; was then late unexcused three times between September 18 and November 8; and was discharged on November 26, after being late again. Moore's first notice, dated July 21, was a warning for coming in late, and his attendance record shows that he had been late on 3 different days and had been absent once up to that point; through an oversight he was given another first warning slip on October 27, instead of being suspended for his unexcused absence on October 25; he had also been late returning from break on 2 consecutive days in October; he was given a suspension notice on November 7 for being away without permission the day before, and was warned, in accordance with the stated policy, that another violation would be grounds for termination. On November 26, he was again late unexcused, and this resulted in his discharge. Among the other 14 employees whom the Company discharged in the first 10 months of its operations for violation of attendance rules (Resp. Exh. 4), there are also variations in their treatment, based apparently on the mix of unexcused absences and tardiness. In accordance with the Company's policy, unexcused tardiness was treated somewhat more leniently than unexcused absences. Thus, comparing employees Hernandez and Johnson, the former was suspended for two consecutive unexcused absences and was discharged on his third, while the latter was given a 12 Mendoza was one of the seven employees whom the Union had subpenaed although Kane said he did not know that at the time 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warning slip after three unexcused lates , suspended after being late four more times, and was then discharged after two more lates. Again, McGuire was warned on his first unexcused absence, suspended after the next two, and terminated after one more such absence, while Tabares was not given a warning slip until his fifth unexcused late, was suspended on his second unexcused late thereafter , was again suspended after two more unexcused lates, and was finally discharged after another two lates. Just as summary as McGuire 's was the discipline meted out to Van Syoc and Hess-the former was warned for his first unexcused absence, suspended for the next, and terminated for the third, while the latter fared only slightly better. He was given a warning slip on his second unexcused absence, and was first suspended, then terminat- ed for his next two unexcused absences. Of the 14 employees whose attendance records are summarized in Respondent's Exhibit 4, I would say that Whitaker was treated most leniently. He was given a verbal warning for his first unexcused absence, was suspended after another two unexcused absences, but was then allowed six "late unexcused" before being given a final verbal warning. He was then terminated on his next late unexcused. Minor and Moore were not treated as summarily as Van Syoc, Hess, McGuire, or Hernandez, nor are there any significantly noteworthy differences between the attend- ance records of Minor and Moore , on the one hand, and those of Johnson, Tabares, or Whitaker. It would prolong this Decision unduly to compare in detail the treatment given to Minor and Moore with that given to the 40 employees listed in Respondent's Exhibit 3, who have been disciplined for violations of the Company's attendance policy, up to and including 3-day suspensions. I have checked the actions taken against the offenses committed, and have found no wide swings in the treatment which has been accorded them. If the Company singled out Minor and Moore for reasons other than their poor attendance, it cannot be verified from a comparison of their records with that of 50 other employees. It is always possible, considering that employees are given little or no opportunity to see or question the entries on their attendance records, that injustices have resulted in some cases from errors in copying, from breakdown in communication between personnel office and foremen, and from a refusal to accept as excuses for lateness or absence explanations which might be satisfactory to more tolerant supervision. There are some possible instances of such injustices in the case of Minor's and Moore's employment, but I have not been persuaded that they were due to any strong antipathy toward them because of their union activities, if company officials even knew about them, or because they had testified at the representation hearing petitioned for by the Union. I therefore find that the allegations of the complaint as to discrimination against Minor or Moore have not been proved , and I shall recommend their dismissal.13 Upon the basis of the foregoing findings of fact and conclusions and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce 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. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER I recommend that the complaint herein be dismissed in its entirety. 13 South Carolina Industries, Inc., 181 NLRB No. 164; Trojan Steel Corporation, 180 NLRB No. 107; and Maryland Cup Corporation, 178 NLRB No. 59.