The Wurlitzer Co.

THE WURLITZER COMPANY 585 The Wurlitzer Company and District Lodge No. 92, International Association of Machinists and Aeros- pace Workers, AFL-CIO. Case 26-CA-3514 November 17, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 23, 1970, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled case, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, as set forth 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 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 and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the General Counsel's exceptions and supporting brief, the Respondent's answering brief, and the entire record in this case, and hereby adopts the findings'I conclusions, and recommendations 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 be, and it hereby is, dismissed in its entirety. I We find it unnecessary to decide whether Henderson was threatened by Parvin during their early October 1969 conversation . We do not rely on any inferences drawn by the Trial Examiner based on the fact that Respondent did not discharge Parvin as a result of what she stated during that conversation. TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner: The complaint herein (issued December 11, 1969; charges filed November 3 and 24, and December 9, 1969), alleges that the Company has violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 73 Stat. 519, by discharging Kathleen Parvin on October 27, 1969, because of her concerted activities on behalf of the Union. Admitting the discharge, the answer denies that it was because of Parvin's concerted activities. The case was tried before me at Corinth, Mississippi, on February 10 through 12, 1970, inclusive. Briefs have been filed by the General Counsel and the Company, the time to do so having been extended. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's corporate status, the nature and extent of its business, and its engagement in commerce within the meaning of the Act are admitted; I find and conclude accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE ALLEGED VIOLATION OF SECTION 8(a)(3) AND (1) To justify Parvin's discharge, the Company cites three written warnings issued to her, two in March and one in October, and its rule that three warnings issued for minor offenses within a 12-month period can result in discharge. This and other rules were posted after a Board-conducted election on January 17, 1969, which the Union lost. Even if the rules were posted in anticipation of further organiza- tional efforts after the election, there is no claim that they are violative or that they were posted discriminatorily. The defense raises several questions. First, has it in fact been the Company's practice to discharge an employee after three warnings within a 1-year period? Second, were the Company's reasons for issuing the three warnings to Parvin supported by the facts? Third, were the warnings issued to Parvin disparately and discriminatorily? With respect to the first of these questions, we do not know how many employees were discharged between February 1, 1969, and January 30, 1970. It was stipulated that during that 1-year period, nine written warnings were issued to a total of six employees: One employee received three warnings and was discharged; one received two; and four each received one. It was later brought out that another employee received a third warning slip in August or September and was discharged because of poor quality and production. We do not know when the first two slips were issued to her. She had been a leadgirl for 5 years. The facts thus testified to do not themselves indicate that issuance of three warnings, as here, was so unusual as to be per se suggestive of discrimination. It appears, as was testified for the Company, that it never deviated from the rule for discharge on the third warning. Before we weigh the testimony concerning the reasons for issuing the warnings to Parvin, we should note her employment history and organizational activities. She had been employed by the Company since 1963 except for two periods when she was on leave. She worked first at the 186 NLRB No. 65 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD larger plant in Corinth, Mississippi, and then, particularly since her last transfer in July 1968, at the Rienzi plant. Parvin became active on behalf of the Union in November 1968 and continued so through the January 1969 election. She was included with three Corinth plant employees in a list of those designated by the Union to attend the Board hearing prior to the election , and was one of the Union's election observers. There can be and is no question of company knowledge of her union activities at that time. Indeed, Long, foreman in charge of the Rienzi plant, admitted that he knew that Parvin was engaged in union activity from June 1968 until her discharge some 16 months later. Union activity was resumed after a meeting with a union representative on June 24, which Parvin and three or four other employees attended. After a 2-week vacation, such activity continued from July through the date of Parvin's discharge, October 27 . Parvin told us that during this later period all employees received cards in the mail from the Union but that she spoke to 30 or 35 , some of them at Corinth, after work, on break, at lunch, and in the washroom . Parvin's later version was that she distributed union cards during this period although other witnesses called by the General Counsel testified, as she had earlier, that cards were sent through the mail and that personal distribution had not been observed. Having earlier declared that it was very likely that plant officials had seen her with a union representative while he was handbilling the plant during this later period, Parvin now testified that she was sure that they had seen her. But again we were more reliably told that there was no handbilling during this period except by mail from the Union. The Rienzi plant is a small one with approximately 60 employees, and there is no question but that the Company knew that Parvin supported the Union . But the extent of her activity at this time is not at all clear; nor is her testimony concerning it reliable. Like Parvin, her half sister, Corbin, was also an observer at the January election . Corbin was at least as active as Parvin on behalf of the Union, and apparently at times more so as she had earlier engaged in handbilling prior to the election. There is no suggestion of animus based thereon, or evidence of warnings to or discrimination against her. We come now to the second question raised by the defense and the issuance of the three warnings to Parvin. We were told she was spoken to several times about the quality of her work, but not given a warning. On March 19 Parvin was given a written warning for failure to clean her work stations as she had been directed to do. On March 21 she was given a second written warning, this time for poor quality work as she had improperly framed approximately 30 boards .. Parvin was spoken to but not given a written warning about bad work which she turned out about October 13. (In this connection, we were told of one bad board returned from the Corinth plant.) On another occasion, the date not fixed, she was given a bad sample and did the work wrong. This was not chargeable to her and she was not given a warning. With respect to the first warning, Parvin had begun to clean up the day before but, as directed, had gone home at quitting time , the task to be finished the following morning. However she had managed on the 18th, Parvin 's excuse for failing to finish the job the following day was that she had not been given a necessary container which her supervisor, Moss, had promised her. She had been cleaning up without a receptacle the day before, whatever the now asserted need for one; she had been interrupted by the quitting time buzzer. She made no protest when she was given the warning slip, and did not indicate that she thought the reason "frivolous" even if the General Counsel deems it "highly suspicious." It does not appear that this warning was unwarranted. Much more was heard at the hearing in connection with the second warning, that for poor work, and the third warning, also for poor work, which was dated October 24 and given to Parvin on October 27 when she was discharged. Parvin testified that, working on several manual jobs, she had been put on a new one on March 20 and worked on it about 4 hours. The next day Moss told her that she had built "some boards" wrong; they had already been shipped to the Corinth plant. Parvin and Moss went to Corinth, where Parvin reworked the boards. It developed that all 32 boards on which she had worked the day before were wrong. Later on March 21 Moss gave Parvin the second warning slip, the latter remonstrating that she had worked on these boards only 4 or 5 hours and Moss replying that if she "had been watching what [she] was doing [she] wouldn't have made the mistake." If she sought to explain away her errors as she testified concerning a conversation with Brawner , her leadgirl at that time, Parvin was not convincing. Brawner did come back and help her, and Parvin "was to follow the sample." (Unlike a later instance, this sample was not questioned.) The impression from Parvin's testimony is that this was one of several models on which she had been working and was not complicated: she corrected the boards by switching a screw and a dart. Neither Moss nor Brawner was called to testify. Certainly Parvin indicated no outrage on receipt of this second warning slip. She refused to sign it, as she had the first and did again the third. Even were one to imagine that this second warning was not altogether justified but was in part prompted by Moss' annoyance because of Parvin's failure to clean up 2 days before, such action would not be discriminatory even if one preferred to assume or infer that it was. It should be noted that on March 17, as Parvin told us, she had trouble with a job and told Moss, who instructed her to set the work aside and transferred her to another job the next day. If this was brought out to show markedly different treatment from that when she was given a third warning in October, it also is clear that she was not warned because of this instance in March just before the first two warnings issued to her. We see here, as later, a mistake on which no warning was issued , followed by another and a warning. Were the Company in March attempting to establish a convenient basis for discharging Parvin on the next occasion to warn her, it did at that early period and again shortly before her discharge in October ignore opportuni- ties for a third warning . I find that there was no such unlawful attempt. THE WURLITZER COMPANY 587 About noon on Tuesday, October 21, Parvin was assigned to a different job, which had been performed by eight employees at various times as they were transferred from job to job. Stewart, her leadgirl, showed her how to do it and helped her all afternoon. Stewart checked Parvin's first few boards the following morning and then, as facility and experience were presumably acquired, spot checked. Parvin further testified that on both the 22d and 23d Stewart told her that she was doing a good job. According to Parvin, Stewart continued to check each board. On the afternoon of the 24th Parvin was taken to the office, where she was charged with doing poor work, and was given a third warning slip. Stewart told us that the first afternoon she checked each board and complimented Parvin on her work; that for the next 2 days she spot checked the work, evidently finding it in order; but that on Friday morning she told Supervisor Pounders, after first speaking to Parvin about it, that the latter had worked many boards wrong. Pounders told us of poor work which Parvin had done about a week before. He had told her to improve but did not give her a written warning.' He now called and informed Long, who was at the moment in Corinth. It developed that of 59 boards then checked at the Corinth plant, Parvin had worked 20 incorrectly, and Long and Pounders decided to give her another warning, realizing that it would mean discharge. There was no dissimulation with respect to their awareness of the seriousness of the third slip. At Pounders' request, Long showed her the boards. This stands uncontradicted except by denial in General Counsel's brief. On rebuttal Parvin testified for the first time that Stewart complimented her on her work as late as Friday. Stewart's comments were clearly important and significantly relevant as Parvin testified on direct examination, when she told us of compliments on the 22d and 23d. But quite as significantly, Parvin did not include reference to any favorable comment on the 24th until she recognized the importance of denying what Stewart had testified concern- ing the events of that day. The facts with respect to the work improperly done belie Parvin's testimony that she was complimented on the 24th. Not only did Stewart report the poor work to Pounders that morning, but it is clear that the work was poor when it was thereafter checked although Parvin had been on that job for approximately 3 days. As for Stewart and the others now checking every board instead of spot checking as she had done earlier, it is understandable that, poor work being found and before action was taken, a more thorough inspection would be made to determine whether the samples checked were representative. (We have seen that the practice reasonably varied with respect to checking work.) Corbin testified to intensive and constant checking by Stewart on another job and that, on one of her jobs in December, Stewart for 4 days checked every board. On the other hand, she also told us that Stewart sometimes checks all of the work and sometimes merely spot checks. This is quite consistent with Stewart's testimony concerning the frequency with which she checks the work. In an attempt to explain her shortcomings, Parvin testified that she was assigned to 14 different jobs between March 14 and October 27. It is not claimed that these frequent transfers were discriminatorily motivated. The reason that no such claim has been made is quite clear: Parvin herself told us that other employees are shifted around to different jobs and various machines.2 Long testified, and Pounders in greater detail, that there are some 770 different jobs in the plant; some employees are transferred more than 10 times in a year, some more than 20. How many different jobs per employee are involved in these transfers we do not know. This would be understandably difficult to determine, and no attempt was made. All of the.operations must be performed each week by the approximately 60 employees. Further in connection with what was now admittedly poor work to be excused as done allegedly on training time, Parvin claimed that whenever she started on a new job, she herself wrote "training" on her timecard. There is no dispute concerning the meaning of training time, several times described; to be resolved is the practice or statements allegedly made concerning it. Training time or status is indicated by the word training written on an employee's timecard. It means that the employee is not required to equal the production standard or quota while she is on such status. Thus she is not charged with producing less than the quota, but is guaranteed 112 percent of the production standard or a 12-percent bonus. This applies on assignment to a new job and also when the employee returns to a job after she has been off it for a while. An employee is thus protected whether or not she has been on the job before; it also covers a wholly inexperienced employee. According to Parvin, the 40-hour training allowance was first mentioned to her about 1966. She cited one job on which she claimed that she had in fact been allowed 40 hours of training time; indeed on two other jobs, that she was given 40 consecutive hours. Despite what she claimed was a longstanding rule and practice, Parvin, from her testimony, appears to have been singled out to be told at various times about the allowance. Thus Long also allegedly told her about it early in September when he put her on a machine. She later modified her account of what Moss had said: He told her that training periods would be "for 40 hours at least " unless she attained proficiency earlier. This reference to at least 40 hours stands alone and suggests further that Parvin was extending herself and the truth to support her claim. I do not credit her. Indeed, the "at least" element makes the 40-hour factor meaningless: Training would be less than 40 hours if proficiency were attained earlier; more than 40 hours if proficiency were not by that time attained. There would be no difference had Parvin now referred to 10, 20, or 80 hours. Training time is allowed. But there was no I The Company's leniency did not vest in her any right to do poor work. doing at the time of the election, to other work . It does not appear that her As we shall see, that this was a few days after Parvin's union activity was job changes had theretofore been less frequent than those of other forcefully brought to the Company's attention by report of a threat which employees. Nor is it suggested that the change on March 14 was she had made. discriminatory or that Parvin objected , or that there was basis for 2 On March 14 Parvin was moved from testing, which she had been objection, to any of these changes. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaningless practice or promise involving a stated number of hours. With training time allowed on transfers, total training time on a given job as an employee several times returned to that job might well exceed 40 hours; and 40 hours of nonconsecutive time would be a limitation, not a promise. Else with frequent transfers, employees might be on training time virtually all of the time; and there is no suggestion of that although Parvin did at one point claim that on one job she may have been allowed more than 40 hours. After examining Parvin's timecards, counsel agreed that they do not show 40 consecutive hours of training time on any single job or, as put to me, any "extensive period." This does not prove that Parvin had not been promised 40 hours of training time generally on different jobs as she claimed she had been promised. But to repeat, whether or not there were such promises is not supported by the timecards as all counsel agreed or by any other credible testimony. We recall that Parvin made the notations herself. As the General Counsel further agreed, Parvin's timecards do not show even 20 consecutive hours of training time on any job. This further reflects on Parvin's credibility since she had earlier testified with positiveness that she had marked "training" on her card for October 21 through 23; she was not certain about October 24. Much more reasonable and credible and in accord with the oral testimony received and the documents examined is the testimony by Reiselt, the Company's personnel manager, that allowance of training time is within the supervisor's discretion. It may be noted also that Parvin did not claim that Moss had promised her 40 hours of training time on this, which turned out to be, her last job and which she had herself characterized as "easy"; hers was a general and wholly unsupported claim. Certainly there was no disparateness in this discharge after 3-1/2 days on the given job. The testimony by Corbin that she at one time asked Long how many hours of training there would be on a certain job and that he replied that it would be 40, so far from supporting Parvin's claim to a general allowance of 40 hours on transfer unsupported as it is by any other testimony or documentation, reflects rather on Parvin's credibility. Corbin had been employed long enough for her to know had such a practice or allowance been recognized; her question would have been unnecessary. The actual practice was completely out of line with what Parvin alone was allegedly told. It appears from her cards and I find that Parvin was not on training time for 3-1/2 days on her last job. Her transfers were not disparate and were not alleged to be. She was reasonably required to do good work on this last job, but she did not meet that requirement. I have not overlooked Pounders' affirmative reply when he was asked on cross-examination, "Now, Mrs. Parvin was on training during the entire period of time that she was working on this 4030 board, wasn't she?" Not only was this reply contrary to the timecard record which showed that Parvin had not noted that she was on training time for any such extended period, and to the reliable testimony which indicates less than 20 hours at any time, but it is clear that the Company could reasonably expect production of a quality which it was not receiving from Parvin. In the absence of other and more weighty evidence of discrimination, one might be tempted to make much of this statement by Pounders. But I would not hang the Company for a word or a thoughtless reply which is contrary to the great weight of the evidence received.3 Much was made at the trial, as this decision reflects, of the issue of training time, and in that posture the issue loomed important. The careful and detailed consideration given to it here may be unnecessary since the General Counsel barely mentions it in his otherwise comprehensive brief. Such neglect may stem from the unreasonable and demonstrably untruthful aspect of Parvin's testimony in this connection. On the question whether warning slips were issued to Parvin disparately, Corbin told us of a mistake pointed out to her on one board and one which another employee had made on another job shortly after Parvin's discharge, and of mistakes which she had made on a wholly new job one day in September. Several other employees called by the General Counsel testified similarly. Thus McCoy told us that on some jobs she has had an occasional wrong board. These were corrected, and she received no warning slips. She had many errors on one job and her leadgirl, helping her, pointed out that the job had been changed in one respect; the new sample given McCoy was correct. She also testified that another employee once told her that certain boards which several girls corrected had been hers. Employee McGaha testified that her first day on one job she had reversed the parts on 40 to 50 boards. She was shown again how to handle the job but was not given a written warning. Employee Puckett testified similarly to mistakes the first day she worked on a new board. She was not given a warning slip for this but did once receive one for excessive absences. Not only were these mistakes of shorter duration, but there does not appear to have been a history of criticism in connection with the respective employees involved. In none of the other cases cited does it appear to have been necessary for the employee and her supervisor to go to the Corinth plant to rework the job. Pounders explained various instances where mistakes were made but no warning slips issued as being cases where the wrong sample had been given to the employee or where mistakes were made during the first day on a new job. We cannot compare instances of occasional or first-time error on a new job by several individuals with multiple poor work on the third or fourth day on a given job. On the other hand, we have seen that warning slips have been given to other employees for poor work and that two others were discharged, one in June and the other in August or September. We have noted that Parvin, like the others, made errors which were called to her attention and corrected in March and also shortly before her discharge with no warning slips issued. I am not persuaded that such instances do not permit issuance of warning slips on other occasions or that the two issued to Parvin for poor work were not warranted. Related to the issue of company knowledge, but perhaps more significant in connection with Parvin's concerted 3 Unlike Struksnes Construction Co., Inc., 148 NLRB 1368, 1371, 1374, we have here no "inartful" act, but an evidently careless reply. THE WURLITZER COMPANY 589 activity and therefore the Company's motive in issuing the third warning slip, is an incident which occurred in September according to employee Henderson, or on October 6 or 7 according to Parvin. Henderson's version is that sometime in September Parvin asked whether she was going to help the Union, and when Henderson replied in the negative, continued that if she did not help and the Company fired her, the Union could not help get her job back. According to Parvin, Henderson had told her at the time of the January election that if things did not change at work she was going to help Parvin organize for the next election; that she now asked Henderson whether things had changed and, the reply being in the negative, asked if she was ready to sign a card and help her. Henderson again replied in the negative, explaining that she was afraid to sign a card, and, assured by Parvin that she would have protection if she supported a union, asked about another girl who had been discharged. Parvin claimed that she now withheld the information that the other girl had filed charges but did say to Henderson that if she did not sign a union card and was fired, she would not have a leg to stand on. Henderson told this to Pounders, who informed Long, who in turn took it up with Reiselt. The latter directed that Parvin be told not to go around threatening employees and on October 9, according to Parvin, Long spoke to her about threatening employees if they did not sign a union card. Parvin denied that she had made any threats. It is not clear whether, in reporting this to Pounders, Henderson referred to Parvin's statement as a threat. In two affidavits to the Board she characterized it as such and she testified that she took it as a threat. If Long, after speaking with Henderson and Parvin, was impressed with the former's reaction, issuance of a warning on that account might be considered reasonable and warranted. But no such warning was issued. No finding need be made as to threat although there is sufficient basis for finding that Parvin did threaten to the point where a somewhat sympathetic employee was prompted to complain to management. The Company is not to be charged with bad- faith failure to investigate further or whatever the General Counsel suggests in his detailed analysis of this incident. It did not attempt to establish the violation of company rules, nor did it take adverse action on what was at least arguably a threat. As noted, the question here is whether the third reprimand was prompted by such activity by Parvin. The very knowledge on October 9 of recent union activity by Parvin on which the General Counsel relies could have prompted a third warning slip had the Company sought to interfere by warning or to discriminate by discharge. Indeed the threat which the Company recognized or claimed would under its rules have warranted discharge without prior warning. Certainly if the Company did not discharge when it might have for the threat which it has consistently since early October maintained had been made, but thought as we were told that speaking to Parvin about it would suffice, such failure to discharge at the very time that it was directly confronted with her union activity suggests, so far from discriminatory animus or purpose, a desire to retain her. (We have already noted some poor work about October 13, for which Parvin was not warned.) Having seen that this is a small plant, we cannot adopt the General Counsel's assertion that "this alleged threat ... was Respondent's first indication of Parvin's renewed union activities." Parvin's activities had been "renewed" since June or July. Further, that "Long testified that he had no knowledge of Parvin's renewed union activities until Henderson told him about this incident" is a misstatement of fact. Long's testimony was that he did not recall that anyone ever told him "anything about Mrs. Parvin talking to them about the union after the last election, up until the Henderson incident in October." Quite to the contrary, Long told us that he knew that Parvin was engaged in union activity before the election and thereafter until her discharge. There is no evidence of any further union activity by Parvin between October 6 and 24 which would have affected the Company's attitude toward her and its motive when it did take action. It may be redundant to add that, if it be claimed that Parvin's discharge was prompted by the Company's knowledge of her activity on behalf of the Union on October 6, and that the oral warning given Parvin in that connection was prompted by the Company's displeasure over such activity, the fact is that any such alleged displeasure or animus did not prompt discharge at that time. If it be claimed otherwise that the threat and reference to it were merely an excuse for later action by the Company, the answer is that they were not: the third warning stands on its own. Had the Company been disposed to discharge Parvin because of her preelection or summer activities or her talk with Henderson, it could readily have done so early in October. This case is unusual for the evidence of opportunities to discharge because of the threat to Henderson and then the poor work prior to that which prompted the discharge on October 27. If it be urged, as may be even though the point was not raised before me, that the Company was "waiting for a better excuse," the short answer is that there is no proof of this. If this be suspected, it may indeed be so; but conversely, it may not be. Not alleged as violative, but relevant for their bearing on the issue of discrimination are two incidents which we now consider. About 3 weeks after the January election Moss, who issued the first two warning slips to Parvin, asked her why she had turned against the Company and, why she disliked him. Parvin replied that she did not dislike him, and told him how she felt about the Union and why. Moss told her that he agreed with her to one extent on the way she felt. About the middle of February, some 4 weeks after the election, Division Manager Davis addressed the Rienzi plant employees and told them that he was disappointed because so many people had voted for the Union. He then told them that the Company had posted new rules,, that the employees were to abide by them, and that supervisors were authorized to hand out pink warning slips. I cannot join with the General Counsel in his deduction that these incidents indicate retribution in the earlier warnings or the discharge more than 8 months later. Neither Moss in his remarks, nor Davis in his, indicated 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resentment (the Union had lost the election) or ill will. If we accept the dictionary definition of "a feeling of hostility or hatred," it does not appear that the Company felt any animus toward the Union or toward any employees who supported it. It may be recognized that the Company did not favor unionization of the plant. That the Company was not, to the point of unlawful acts, concerned with union activity may be judged by the absence of even a claim of violation before the January election or during the later organizational activity which commenced in June.4 There is neither claim nor indication of ill will, hostility, or violation at these plants at any time. It is true, as noted in the Erie Resistor case, that to the extent that antiunion intent and timing are shown, we need not rely on the "inherently discriminatory" nature of the conduct which is directly alleged to be violative. As the Supreme Court stated in that case,5 When specific evidence of a subjective intent to discriminate or to encourage or discourage union membership is shown, and found, many otherwise innocent or ambiguous actions which are normally incident to the conduct of a business may, without more, be converted into unfair labor practices. Whatever support for a finding of discrimination might be based on a finding of animus, Moss' remarks to Parvin and Davis' expression of disappointment and the adoption of new rules after the Union lost the election do not provide such support. A preference indicated as mildly as here to operate its business without the intervention of a labor organization is not equivalent to that animus which itself suggests and supports a finding of discrimination. With respect to animus, we must distinguish between an expressed preference that there be no union and actual animosity. Thus a feeling or expressed preference may be no more than this-is-what-I- think-but-do-what-you-want; animosity may express itself in unlawful conduct, conceiva- bly in harsh, lawful terms. It would indeed be strange, certainly unreasonable, to tar with the same brush an employer who tells his employees only that he thinks a union is unnecessary but that the decision is theirs to make freely, and one who threatens and commits other serious interference with employees' rights to engage in concerted activities. The variety and extent of opposition to unionization are too great to permit fixed inferences on mere showing of preference or of some opposition as here. There is no support in logic or in fact for use of the term animus to describe both extremes of attitude, and then to superimpose on such noneclectic use an inference that may sensibly be drawn as one approaches one extreme but would defy reality in the case of the other. To posit violation on Davis' mild and lawful attitude and expression would be not only to base discrimination on 4 Cf. Winn Dixie Stores, Inc., 181 NLRB No. 88. 5 N.L.R.B. v. Erie Resistor Corporation, 373 U.S. 221, 227. 6 TXD-244-70. 7 N.L.R.B. v. Dan River Mills, Inc., 274 F.2d 381, 384 (C.A. 5). Cf. conduct which is not charged and cannot be found to be violative even as unlawful interference, but also to impute to the Company a purpose which the evidence does not support. An expression, even lawful, of opposition to a union may indeed indicate animosity and discrimination. But just as certainly no such animosity appears here and no "subjective intent to discriminate." Any opposition or animus here suggested was not, to borrow a term frequently employed in this connection, "virulent." If we remove the carapace which may embrace an ill- defined animus, there is no basis here for an inference of discriminatory motive. The Company's attitude, frankly declared, was not followed by any coercive or interfering tactics. At no prior time did it appear to have been concerned with Parvin's union activities, and it was not on October 24. Nor is there any evidence or claim that, aside from the discharge here in issue, it in any way or at any time interfered with, restrained, or coerced employees in the exercise of their statutory rights to engage in concerted activities. While violations need not be as flagrant as those indicated in the recent Pioneer Chrysler-Plymouth, Inc., case,6 the facts there stand in marked contrast to the various aspects of those in the instant case. Certainly we have here no evidence of such "antiunion bias and demonstrated unlawful hostility [as would constitute] proper and highly significant factors for Board evaluation in determining motive." 7 On the facts before us, it would be wholly unwarranted to find that the Company's preference that its employees not select the Union as their representative prompted, trig- gered, or even partially motivated Parvin's discharge; and that she would not have been discharged but for her union activities. The evidence does not support the serious allegation of malversation filed against the Company. There is no sufficient basis for finding that the warnings in March or the warnings or discharge in October were discriminatory. I do not accept as determinative of the issues before us a statement which we were told Parvin filed with the Mississippi Employment Office and in which she declared that she was fired because of "bad quality." It would appear, this being not unusual, that she was there declaring the reason given to her when she was discharged. This is no more to be relied upon than is Parvin's self-serving conclusion, stated at that time, that she was discharged because of union activity. 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. N.L.R.B. v. Ambox, Incorporate4 357 F.2d 138, 142 (C.A. 5); N.LR.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 246 (C.A. 8); Borek Motor Sales, Inc. v. N.L.R.B., 425 F.2d 677 (C.A. 7).