Philips Industrial Components, Inc.

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Philips Industrial Components , Inc. and Jay F. Terry. Case 25-CA-3724 April 29, •1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On January 6, 1971, Trial Examiner William F. Scharnikow issued his Decision in the above-entitled case, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed timely 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 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 Ex- aminer made at the hearings and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint be, and it hereby is, dismissed in its entirety. Frank W. Luther and Jay F. Terry on or about October 28, 1969, and employee David F. Seymoure on or about October 29, 1969, because said employees formed, joined, and assisted the Union, sought to bargain collectively through representa- tives of their choosing, and engaged in other concerted activi- ties for the purposes of collective bargaining and other mutual aid and protection. Pursuant to notice, a hearing was held in Albion, Indiana, on July 22 and 23, 1970, before me, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent appeared by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence upon the issues. Counsel for the General Counsel and for the Re- spondent have submitted briefs which have been duly consid- ered. Upon the entire record in the case, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, Philips Industrial Components, Inc., an Ohio corporation with its principal office and place of busi- ness in Albion, Indiana, is engaged in the manufacture, sale, and distribution of undercarriage parts for mobile homes and related products. During the year preceding the issuance of the complaint, the Respondent in the course and conduct of its business purchased, transferred, and procured delivery to its Albion, Ohio plant goods and materials of a value exceed- ing $50,000 which were transported to said plant directly from States other than the State of Indiana. During the same year, the Respondent manufactured, sold, and distributed products of a value in excess of $50,000 which were shipped from said plant directly to States other than the State of Indiana. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to entertain jurisdiction of this case. H. THE LABOR ORGANIZATION INVOLVED Teamsters Local No. 364 International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (herein called the Union) is a labor organization within the meaning of the Act. ' Respondent's exceptions directed to the credibility resolution of the Trial Examiner are without merit. The Board will not overrule the Trial Examiner's resolutions as to credibility unless a clear preponderance of all relevant evidence convinces us that they are incorrect . On the entire record, such a conclusion is not warranted . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW,, Trial Examiner: The com- plaint as amended at the hearing alleges, but the answer of the Respondent denies, that the Respondent, Philips Indus- trial Components, Inc., has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519 (herein called the Act), by Supervisor Dwight Busche's interrogating employees con- cerning their membership and activities in Teamsters Local No. 364, International Brotherhood of Teamsters, Chau- ffeurs, Warehousemen and Helpers of America (herein called the Union), and by Respondent's discharging employees 190 NLRB No. 35 III. THE UNFAIR LABOR PRACTICES A. Introduction In October 1969' the Respondent's plant in Albion, a town with a population of about 1,500, had about 85 employees on its payroll. Beginning in the middle of September and for the next 4 to 6 weeks, truckdrivers Jay Terry and Frank Luther had frequent discussion at their homes and whenever they met at the plant and at eating places along the road about the possibility of getting a union to represent them and other employees at the plant. They also had individual conversa- tions concerning this possibility, both in the plant and on the loading dock, with about 20 other employees, including the Respondent's 2 other truckdrivers, 2 of the shipping depart- ment employees and a number of the women production employees. There is no evidence that any of these conversa- tions took place in view or within the hearing of any of the Respondent's managerial or supervisory employees. ' All material events occurred in 1969. PHILIPS INDUSTRIAL COMPONENTS In late October, truckdriver Terry telephoned Clarence Carbett, the Union's business representative in South Bend, and asked Carbett how he could get the Union in to represent employees at the Respondent's plant. Carbett suggested that Terry get either signed Union application cards or a petition to show the number of employees who were interested. Ac- cordingly, on Sunday evening, October 26, Terry had his mother prepare a letter to the Union stating that the truck- drivers, shipping, receiving, and dockworkers of the Re- spondent who were to sign the letter wanted representation by the Union. That same night, Terry and Luther signed the letter, procured the signatures of the two other truckdnvers, and by telephoning forklift drivers David Seymoure and Steve Ott (after first getting Ott's number by telephone from receiving clerk James Hile without telling Hile why they wanted it), arranged to get Seymoure's and Ott's signatures (which they did) early the next morning on the Court House Square in Albion before they went to work. With six signa- tures on the letter to the Union , Terry and Luther mailed the letter to the Union at noon on Monday , October 27. On Tuesday , October 28, the Respondent discharged Terry and Luther and on Thursday , October 30, it discharged Seymoure, telling the men as each was discharged that he was being discharged for violation of a company rule or rules, i.e., in Terry's case for carrying a loaded gun in the cab of his truck, in Luther's case for insubordination , and in Seymou- re's case for tardiness and absenteeism. The General Counsel contends that the three men were actually discharged by the Respondent because of their union activity and that the grounds assigned for the discharges by the Respondent were mere pretexts . He attempts to support this contention in part by arguing that the Respondent's knowledge of the men's union activity leading up to, and including, their signing and mailing of the letter to the Union, must be inferred from the smallness of the Respondent's plant and from Luther's testimony that on Monday morning, Octo- ber 27, Hile, whom Terry, Luther, and Seymoure testified they regarded as a foreman or supervisor, asked Luther whether Luther and Terry had gotten in touch with Ott the previous night and why they had wanted Ott 's telephone number; that Luther replied that they had contacted Ott concerning a union but he wanted it kept quiet "because I don't want to lose my job over this "; and that Hile then said he understood and wanted "to be left clear out of it. I don't want to have anything to do with it at all." But, upon my consideration of the evidence, I reject these arguments con- cerning the Respondent's possible knowledge of the men's union activities. Despite the small size of the plant , the em- ployee' activity was not so open nor widespread by the time of the discharges as to warrant the conclusion that the Re- spondent knew of it . As to Hile's status , I find (upon consider- ation of the three dischargees' testimony and the testimony of Hile and Plant Manager Carl Burchett) that at the time of the October discharges Hile was merely a receiving and in- spection clerk working under Shipping and Receiving Fore- man Dwight Busche, that he was not then a supervisor within the meaning of the Act, and that he was only later promoted to the foremanship in December when Busche became a pro- duction foreman . The mere facts that Hile had substituted for Busche for brief periods when Busche was not at the plant (as Luther and Seymoure testified) and that he occasionally gave instructions to forklift drivers as to the placement of materials (as Seymoure and Hile both testified), were not sufficient to make him a supervisor. For the frequency and duration of Busche's absences are not shown by the evidence, and it ap- pears from Hile's credible testimony that the instructions he gave to the forklift drivers were routine and that even without 185 his instructions the drivers knew where they were to place the materials. Several of the General Counsel's witnesses also testified that either at the time of the discharges or thereafter one of another of the Respondent 's supervisors or representatives made statements admitting or at least intimating that the Respondent knew of the three men's union activity and that this activity had motivated the Respondent in discharging them. In each case, the supervisor or representative denied in his testimony that he had made the statement attributed to him. But the conflicting evidence as to such statements is so intertwined with the discharges that it can be conveniently and intelligently evaluated only in connection with the cir- cumstances of each of the discharges and the ultimate ques- tion of whether the grounds given by the Respondent for the discharge were so patently false and pretextual as to warrant an inference not only of the Respondent's knowledge of the men's union activity but also of the fact that the Respondent discharged them because of it. B. The Discharge of Jay Terry Jay Terry was employed by the Respondent as a truck- driver and worked under Dwight Busche, the Respondent's shipping and receiving foreman from March 1969 until his discharge by Plant Manager Carl Burchett on October 28, 1969. For some time before his discharge, Terry kept a loaded revolver in the cab of his truck and had told Foreman Busche that he was doing so because of the rough neighborhood of a Detroit plant where he and the other truckdrivers some- times made deliveries at night. Among the general plant rules which the Respondent had delivered to its employees when they were hired and had also posted on its bulletin board was a Rule D-7 providing that "Firearms and other weapons are prohibited in the plant at all times" and prescribing discharge for a violation of the Rule. Busche waited at least a week or two before reporting to Plant Manager Burchett on Tuesday morning, October 28, that Terry had told him he was carry- ing a gun in his truck . On Burchett's instructions, Busche and another supervisor checked Terry 's cab and, upon finding the revolver there, they brought Terry to Burchett at the truck. Upon being asked by Burchett, Terry admitted that he had a revolver in the cab. Thereupon Burchett told Terry he was discharged for a violation of Company Rule D-7. In spite of the agreement of the General Counsel's and the Respondent's witnesses on this overall general account of the discharge, their testimony was in conflict as to a number of important additional elements. Terry testified that he had not received a copy of the plant Rules and first learned of Rule D-7 when Burchett read it to him at the time of his discharge; that he had been carrying the gun at least 2 or 3 months before his discharge and during this time had never removed it from the cab ; that he had spoken to Foreman Busche twice about it , once before and once after he started carrying the gun ; that on the first occa- sion, Busche had said he did not blame Terry and would also carry a gun; that when on the second occasion 2 or 3 weeks later Terry told Busche he had started carrying the gun, Busche said he should never bring it into the plant and Terry assured him he would keep it in the cab and lock the cab; that when Manager Burchett read him Rule D-7 on October 28, Terry protested that he had not violated the Rule since he had never had the gun "in the plant "; and that, as Terry was removing his personal gear from the cab immediately after his discharge, Foreman Busche said to him "that he knew that there was more to [the discharge] than just the revolver, but he wasn't at liberty to say more than this." 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel also introduced the testimony of truckdriver William Dalton and Charles Paduano, a later applicant for employment, to prove that after both Terry's and truckdriver Frank Luther's discharges on October 28, Foreman Busche in effect suggested to Dalton and "Person- nel Manager" Don McClure intimated to Paduano that the two men had been discharged for their Union activities. Dal- ton, who had signed the Union letter on October 26 but had told no one that he had done so, testified that a month after Terry's discharge, Foreman Busche told him that he knew the identity of the six men, including Dalton, who had signed the paper "concerning the union." Charles Paduano testified that, hearing of Luther's discharge, he applied 'fora truck- driver's job, filled out a job application and was interviewed in the Respondent's plant office by "the personnel manager" who (as counsel stipulated at the hearing) was Industrial Engineer Don McClure; that in his application Paduano said he expected "union scale"; that McClure told him what the Respondent's pay rate was and asked Paduano if he knew anyone who worked for the Respondent; that Paduano said, "Yes, Frank Luther but I understand he got fired"; that McClure said "yes"; that McClure also said that "There will be times that you will have to run a little illegal log-wise but we don't expect you to kill yourself"; that McClure also said, "that there were some men talking about the union and they weren't ready for a union"; that McClure said Paduano could report to work the next morning, but when Paduano sug- gested that McClure might want to investigate him first, McClure agreed and said he would call Mrs. Paduano if the Respondent decided to hire him. Paduano was not hired. In their testimony, Busche and Burchett contradicted Ter- ry's and Dalton's testimony on the points just summarized and McClure gave a completely different version of his job interview of Paduano. Thus Foreman Busche testified that Terry had spoken to him about carrying the gun only once, and that this was not more than 2 weeks before the discharge; that Busche did not tell Terry either that he too would carry a gun or that Terry should not bring it into the plant; that, although Busche knew of Rule D-7 at the time, he did not say anything to Terry nor report the matter to Manager Burchett since "he thought [Terry] was more or less joking with me because you don't think of anybody going around carrying a gun with him ordinarily"; that, about a week later when one of the trucks left for Detroit on October 28, Busche "got to thinking about what might happen ... if a guy really had a gun in his truck; you know, freak accidents ... that could arise ... and I thought I better check into the situation, and that is when I went to Mr. Burchett and reported Terry's statement about the gun"; and that Busche did not say to Terry as the latter was taking his personal gear from the truck after the dis- charge, that there was more to the discharge than just the revolver but Busche was not at liberty to discuss it. As to his later conversation with truckdriver Dalton, Bus- che denied that he had told Dalton he knew that Terry, Dalton, or any of the other employees had signed the Union letter of "petition." In a completely different version of his conversation with Dalton, he testified that Dalton had been absent from work several days before he quit in January 1970 and that, during his absence, the personnel manager of another employer had notified the Respondent Dalton had applied for a job there, stating that he was leaving the Re- spondent "because we were going to terminate him on ac- count of union"; that after Busche left word at Dalton's home that he wanted to see him, Dalton came into the Respond- ent's plant; that Busche asked him why he had said he was going to be fired because of union activity; that Dalton said "that since Frank [Luther] and Jay [Terry] got fired for sign- ing this petition that he was going to get fired"; that Busche told Dalton that Luther and Terry "were not fired because of any petition that they had signed ... and that [Busche knew] nothing of this;" and that when Dalton said he too had signed the "petition," and "if he had to do it over again he would still sign it," Busche told him "that was up to him but because he had signed a petition would not jeopardize his job." Manager Burchett who discharged Terry also denied the critical elements of Terry's testimony. Burchett testified that he acted as he did because Foreman Busche told him on October 28 that Busche had been told by Terry a week or so earlier that Terry had a gun in his truck; that Burchett did not know at the time of Terry's or Luther's union activities; and that when he told Terry on October 28 that he was discharged because of a plant rule against firearms, Terry did not dispute the application of the rule to him because he had the gun in his truck and not "in the plant." Finally, Industrial Engineer McClure denied the material substance of Paduano's testimony concerning their conversa- tion when Paduano applied for a truckdriver's job. He tes- tified that Paduano asked him merely whether the Respond- ent had a union and paid union scale; that McClure answered both questions in the negative; and that, although Paduano referred to the fact that he knew Luther had been discharged and therefore thought there was a job opening, Paduano did not ask why Luther had been discharged and McClure did not say that there had been union activities. McClure also denied Paduano's testimony that he told Paduano that there would be times when he would be expected "to run a little illegal log-wise" but would not be expected to kill himself. Instead McClure testified that Paduano asked him "what our attitude was on running legal, and my answer was as to all applications of this type that we expected to run according to the law." Upon my appraisal of the witnesses and a consideration of the substance of their testimony, I cannot say that the tes- timony of the General Counsel's witnesses preponderates and warrants findings in accordance therewith. I therefore accept the denials and explanations given by Busche, Burchett, and McClure. I find as they testified that Terry was discharged for carrying a revolver in the cab of his truck and that neither Busche nor McClure made any statements which would have indicated that the discharge actually was for union activity. Moreover, I reach this conclusions despite Busche's delay of a week or so in reporting Terry to Burchett and the fact that in discharging Terry, Manager Burchett referred him to Rule D-7 prohibiting firearms "in the plant." In situations of the kind presented in this case, we must recognize that we are dealing with the actions and testimony of average, everyday people whose reactions and mode of statement should be realistically appraised in the light of circumstances in the case and not, with our benefit of leisurely hindsight, in accordance with too nice a standard of reasonableness or aptness of ex- pression. It therefore appears to me to be plausible that, as Busche testified, he at first thought Terry "was more or less joking with me because you don't think of anybody going around carrying a gun with him ordinarily," and that it was only upon later reflection that he realized Terry might not be joking and reported the matter to Manager Burchett. Manager Burchett's reliance upon Rule D-7 for the dis- charge, too, does not obscure the fact that Terry had been admittedly carrying the gun in his truck and that this was the ample reason for which Burchett actually discharged him. Whether the cab of the truck constituted part of the "plant," the term used in the rule, seems to me to be immaterial. Accordingly, I conclude that Terry was discharged for carry- ing a gun in his truck and not for his union activity. I recom- mend the dismissal of the allegation of the complaint that his PHILIPS INDUSTRIAL COMPONENTS discharge was discriminatory and a violation of Sections 8(a)(3) and (1) of the Act. Finally, I have accepted Foreman Busche's denial and re- jected truckdriver William Dalton's testimony that Busche told him he knew that Dalton and the five other employees had signed the union letter of October 26. Since this was the only evidence that the General Counsel produced to support the allegation of the complaint that the Respondent interro- gated employees concerning their union membership and ac- tivities and thereby independently violated Section 8(a)(1) of the Act, I also dismiss this allegation of the complaint. C. The Discharge of Frank Luther Frank Luther was also a truckdriver who worked under Foreman Busche from the time of his hire in May 1969 until his discharge by Manager Burchett on October 28, 1969, the same morning Burchett discharged Terry. At midnight on Wednesday, October 15, Luther had re- turned from a 400-mile round trip to Detroit and, on tele- phoning Busche at his home at 1 a.m., was told by Busche he was to take a 45-mile trip to Defiance that morning. But, on his reporting at the plant that Thursday morning and being told by Busche that he was again to make a trip to Detroit, he told Busche he was not "feeling up to par" and went home. After Luther left the plant for his home, Busche said to one of the forklift drivers on the dock that Luther "should be fired, that he didn't appear [to Busche] to be sick from the tone he used when he said he was going home.... " At or about 4 p.m., Luther telephoned Busche, said he was feeling better, and received his assignments for the next morning, Friday, October 17. Accordingly, Luther reported for work that Friday morning at 7 o'clock but on his arrival the dock workers suggested that he wait for Busche because they said they had heard Busche say he was going to send Luther home again. Luther waited for Busche. When Busche came in at 8 o'clock that Friday morning of October 17, Luther repeated to him what the dock workers had told him. He also told Busche that he could get Busche discharged for having the Respondent's drivers "run illegal"; that he knew from help- ing the other drivers prepare their logs that their logs were not kept correctly and that Respondent's drivers were run- ning more hours than the ICC regulations permitted; that he could report this to the ICC; and that he would not falsify his own records "any more."2 Busche thereupon asked Luther for the keys to his truck but Luther had left them in the truck. Leaving Luther, Busche went into the office. A little later, both Luther and Busche were called into the office by Office Manager Holland, who was Busche's superior but a subordi- nate of Plant Manager Burchett. Luther repeated to Holland his accusation that the Respondent was working its drivers more "than what the ICC permits" and Holland said that the Respondent "wanted him to run the truck operation legally and [that] that is the way it would be run." Although Luther in his testimony said he did not think there was any reference in this conversation with Holland to his having said he could get Busche discharged for "running illegal," I credit the tes- timony of Busche and find that Luther admitted to Holland that he had made this statement or threat, and apologized for having made it, saying that he had "family troubles at home and ... just blew his top." I also find, as Busche testified, that Holland had thereupon "advised Luther to be more cautious in the future while talking to [Busche] about company poli- cies ... and getting [Busche] fired." ' According to Luther's and Busche's testimony , this was the substance of Luther's statements to Busche. 187 For the next week and up to and including the additional workday of Monday, October 27, Luther received his usual driving assignments. Then on Tuesday, the 28th, he was dis- charged by Manager Burchett. In the meantime, Busche had asked Burchett whether he had authority to fire a truckdriver and, upon Burchett's ask- ing "Why?", Busche had told Burchett of his argument with Luther on October 17. Busche testified he thought he had this conversation with Burchett on the morning of October 28, immediately after Burchett had discharged Terry. But Bur- chett testified, and I credit his testimony as more reliable, that he thus learned on Friday, October 24 of Luther's threatening to have Busche discharged for "illegal running," and that, being concerned about such a serious accusation involving the Respondent, he first asked Office Manager Holland that day about the legality of the Respondent's driving operations and, although assured by Holland that the operations were legal, he nevertheless asked Holland to check the regularity of the drivers' logs. On Monday or Tuesday, October 27 or 28, Holland reported to Burchett that there were no ir- regularities in the logs. On Tuesday morning, October 28, Manager Burchett had Foreman Busche bring Luther into the office. In answer to Burchett's questions, Luther admitted that he had refused to take the Detroit run, that he had had an argument with Busche, that he had told Busche he could have Busche fired for having the Respondent's drivers run illegally, and that he (Luther) knew of this because the other drivers had asked him to check their logs and he had seen the logs on Busche's desk. Burchett asked Luther why he did not make the Detroit run. Luther said he was feeling a little sick and did not have enough hours left to make the run under ICC regulations, but Busche said he had enough hours. Burchett asked Busche whether Busche had asked any driver "to run illegal" and whether his log sheets were "legal." Busche answered the first question in the negative and the second in the affirmative. Burchett then had Luther step out into the lobby of the office and recalled him only after telling Office Manager Holland and Busche who were in the office at the time that Holland must back up Busche in dealing with the drivers, and that he had to take action with respect to Luther in order to prevent the recurrence of the type of threats and accusations which had been made by Luther and which were violative of three of the Respondent's rules. Luther was thereupon recalled from the lobby and Burchett told him that he had no choice but to discharge him and to ask him to leave the plant after getting his personal belongings, because of three violations of the plant rules. At Luther's request, Burchett showed him a copy of the rules and referred him to Rule E-3 which pro- vided for discharge upon the first instance of an employee's insubordination or refusal to obey a supervisor's orders,' and also to Rule E-7 which provided for a reprimand with a 3-day layoff and then for discharge, upon the first and second in- stances of an employee's threatening, intimidating, coercing, or interfering with other employees or supervisors at any time."' ' It appears from a copy of the plant rules which is in evidence that the statement of each of the rules was followed by either a "(1)," a "(2)," or a "(3)" to indicate whether an initial infraction of the rule would normally result, respectively, in a warning, a reprimand with a 3-day layoff, or a discharge. Appendage of a "(1)" or "(2)" to a rule indicated that repetitions of the violation would result in the next heavier penalty or penalties in the above sequence. These findings as to the conversation on October 28, in which Manager Burchett discharged Luther, are based upon the substance of the consistent testimony of Burchett and Foreman Busche as well as upon the provisions of the plant rules to which Burchett referred Luther's testimony, although not given in such detail, is for the most part not inconsistent with these (Cont.) 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Like Terry, Luther testified that immediately after his dis- charge, when Busche drove him into town to pick up his car, Busche said to him he was sorry Luther had been fired and that "it really is more than your insubordination" that was responsible for the discharge. But, as in the case of Terry, Busche in his testimony denied that he had made any remark to Luther about the discharge when he took Luther into town. I credit Busche's denial. Upon the foregoing facts, found upon consideration of the relevant evidence, I conclude that there is no basis in the record for believing that Foreman Busche, Manager Bur- chett, or any other representative of the Respondent knew of Luther's Union activity nor therefore that Burchett dis- charged him because of that activity. In addition to crediting Busche's denial of Luther's testimony that Busche told Lu- ther there was more than "insubordination" behind Luther's discharge, I have in my consideration of the circumstances of Terry's discharge also credited Busche's and Personnel Manager McClure's denials of the testimony of Terry, Dal- ton, and Paduano upon which General Counsel relies to show statements by these representatives of the Respondent in- dicating the Respondent's knowledge of Terry's and Luther's union activity as being the reason for their discharges. Fi- nally, the circumstances of Luther's discharge support both Busche's and Burchett's testimony to the effect that Burchett discharged Luther, not for any known or suspected Union activity on his part, but solely for his insubordination in refusing to take the Detroit run on October 15 and his threat- ening 2 days later to bring about Foreman Busche's discharge by accusing Busche and the Respondent of requiring Luther and the other drivers to "run" in excess of the hours permit- ted by ICC regulations. I do not regard Busche's waiting for a week before bringing this insubordination to Manager Bur- chett's attention as raising any real doubt that Luther was then discharged by Burchett solely for this reason. For Bus- che had reported his unpleasant conversation with Luther immediately to Office Manager Holland without Holland's doing anything about it, and then, apparently still rankled and concerned about Luther's serious accusation and chal- lenge of his authority as foreman and the legality of the Respondent's driving operations, he understandably also re- ported the incident to Burchett, who as plant manager was the Respondent's highest local representative responsible for all the operations at the plant. There is no evidence that either Busche or Burchett had in the meantime learned of Luther's Union activity. Accordingly, I conclude that, as Burchett and Busche testified, Burchett discharged Luther not for any Un- ion activity but solely because of his insubordination and the accusation he had made about the "illegality" of the Re- findings. Luther testified that Burchett referred to "my misunderstanding or a little argument I had with Dwight Busche" and told Luther "that I was terminated as of that time ... for insubordination, and he cited a plant rule, I believe it was 7 ... and that they couldn't have such goings on, and that I had done a good job for them but they just couldn't have it go on, therefore I was terminated." On cross-examination, Luther testified that he also be- lieved Burchett said something about Busche's having told Burchett that Luther had checked the other drivers' logs and found they were not filling them out correctly, and that he (Luther) had not denied having done so. In only one respect did Luther's testimony appear to be in conflict with Bur- chett's testimony as to the grounds given by Burchett for the discharge. Thus Luther testified that Burchett showed him Rule "7," that he asked Burchett what the "(2)" appearing after the rule "stood for," and Burchett said "that was the penalty for the infraction that I committed but [that] he had discre- tion in the matter." From this it would appear that Luther intended to imply in his testimony (contrary to Burchett's testimony which I have already credited in the text) that Burchett did not refer him to Rule E-3 which carried an initial penalty of discharge, but only to Rule E-7, to which the "(2)" was appended as an indication that normally an initial violation would result only in a reprimand with a 3-day layoff. (See fn. 3, supra.) spondent's trucking operations. I therefore dismiss the allega- tion of the complaint that the Respondent discharged Luther because of his Union activity and thereby committed an un- fair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. D. The Discharge of David Seymoure David Seymoure was employed by the Respondent during his college vacation in the summer of 1968 and then, on completing college, from June 1, 1969, until his discharge on October 30, 1969. In this last period of employment he first worked until August as a machine operator and from August until his discharge as a forklift operator under Foreman Bus- che. On October 30, under circumstances which will be con- sidered in detail, he was given the following discharge notice by Foreman Busche and Superintendent Hiner: "This is a discharge notice for his attendance and tardyness. This month he has been absent 3 times and tardy 6 times after being warned several times. He has not corrected this. Also he has failed to call and report to us of his reason for his absence and tardyness." The Respondent asserts that its action in thus discharging Seymoure was based upon his violation of the following plant rules applying to each of its employees: A. Attendance and Attention to Work 1: Be on the job every scheduled working day. (1) 2: Report for work on time. (1) 3: If absent for a justifiable reason, notify the person- nel office immediately. Delay can be serious, particularly if there is absence for three consecutive work days with- out notification followed by failure to report on the fourth work day. (Automatic removal from payroll as "Quit-without notice.)' The evidence shows that during his brief employment Seymoure had had difficulties with the Respondent because on three occasions he did not report for work on a working day and was frequently late for work. In June or July 1969, while he was a machine operator, an unexpected delay in getting contact lenses, without which he could not see, caused him to miss work on a Monday and Tuesday. Although he told an office girl over the telephone that he would not be in to work, he was discharged that Wednesday. But on Friday, after he explained what had happened, Superintendent Hiner reinstated him. On the second occasion of his being absent from work, in the beginning of October 1969, he received a written notice and warning dated October 8 (which he ac- knowledged with his signature on the notice) for "not work- ing on a scheduled working day and not calling in [as required by] rule A-1." His third absence from work occurred on October 30, was the occasion for his discharge for tardiness and absence without notification, and followed a number of recent instances of his being late for work. The background of Seymoure's tardiness is clear from the evidence. From his testimony as well as the evidence gener- ally, it appears that he was frequently late for work. As Seymoure himself testified, "I guess you would call it I just had trouble obeying the alarm clock." Oral warnings were given him repeatedly and about a week and a half before his discharge (according to Seymoure's testimony), Foreman Busche gave him a written warning (which Seymoure ac- knowledged with his signature) to the effect that "This notice is being written after having been orally warned about his tardyness. Dave has been late for work six times so far this month. If you are late one more time I [will give] you the second reprimand with three day layoff. Rule A-2." And yet, ' Sec fn. 3, supra. PHILIPS INDUSTRIAL COMPONENTS 189 during the 8 working days of the next week and a half, up to and including Wednesday, October 29, Seymoure's timecards show that he was again late four times. Seymoure, as a singer with a college group, has profes- sional aspirations. To further them, on Tuesday evening, Oc- tober 28, he drove to Chicago (roughly 200 miles from Al- bion), and visited two or three night clubs until 2 or 3 a.m. He reported late for work the next morning, Wednesday, the 29th, and when asked why he was late, he told Foreman Busche that he had visited a Chicago night club the previous night to meet some people in connection with a singing career and that he had left Chicago too late for him to drive all the way back and get to work on time. Seymoure then worked until his regular quitting time of 3:30 that afternoon, the 29th. During that evening he was driving his car when he had a three-car accident in which he and his passenger, Jay Terry (who had been discharged the day before), were injured. Terry was taken to the hospital in Goshen. Seymoure, although he had several ribs cracked and received scrapes and bruises of his nose, elbows, and knees, was not hospitalized. While Seymoure was in a police car at the scene of the accident, Steve Ott, another of the Respond- ent's forklift drivers, came by and Seymoure asked him to tell Foreman Busche, Superintendent Hiner, and Plant Manager Burchett that he would not be in to work the next day because he had been hurt and did not know whether the doctor would hospitalize him. Ott promised to relay this message. At. 12:30 a.m., Seymoure saw a doctor who told him to stay in bed for a few days until the extent of his injuries could be determined. Seymoure did not report for work the next day, Thursday, the 30th. Ott apparently did not give Seymoure's message to Busche.b Seymoure was awakened at 11 a.m. by Frank Luther (who had been discharged 2 days before this) and Seymoure and Luther drove to the Goshen hospital where they visited Terry. They returned to Albion about 3 or 3:30 p.m., when Seymoure's mother, a school teacher, insisted on driving him first to a doctor for a further checkup and then took him out to the Respondent's plant where they arrived about 4 or 4:30 p.m., and thus either a half hour or an hour after Seymoure's shift was over. In the meantime, according to Foreman Busche's tes- timony which I credit, Busche had decided about noontime to discharge Seymoure for his repeated tardiness and his failure to report for work that day without having called in. Furthermore, I credit Busche's testimony that he had pre- pared the discharge notice which has already been quoted at length before Seymoure finally came in to the plant at 4 or 4:30. Seymoure told Busche that he had been in a wreck and asked whether Ott had told Busche who he would not be in to work. Busche denied having received any such message and after getting the prepared discharge notice from the office, gave it to Seymoure and asked him to sign it. Seymoure at first refused to do so and asked to see the plant rules. Busche got Superintendent Hiner and, although still protest- ing, Seymoure then signed the notice. The General Counsel contends that Busche thus dis- charged Seymoure because of his union activity and not be- cause of his tardiness nor his absence from work on October 30. In part, he relies upon Seymoure's uncontroverted tes- timony that about 6 weeks before his discharge he asked Busche how conditions would be under a union; that Busche said he did not like unions; that Seymoure asked what would happen to men who joined a union; and that Busche replied that in his opinion the Company would have to fire them. The General Counsel, relying upon a literal construction of the plant rules, also argues that Seymoure's tardiness and absence from work without calling in were apparently not the actual reasons for his discharge since Seymoure was not given a second notice with a 3-day layoff either for tardiness or for not giving the Respondent notice of his failure to report to work on October 30. But neither of these arguments presents a sufficient ground for a finding under the circumstances of the case that the Respondent in fact discharged Seymoure for union activity. For there is no persuasive evidence in the record that either Busche or any of the Respondent's other representatives learned of the activity of Seymoure, Terry, or Luther in their attempt to secure representation by the Union, and, as in the cases of Terry and Luther, the question presented by the evidence is whether Seymoure's discharge for tardiness and his absence from work on October 30 was so patently pretex- tual as to provide an inference that, in fact, Busche knew of Seymoure's involvement in the union activity and that it was for this reason that he was actually discharged. On this point, the evidence necessary for the support of the General Coun- sel's position is clearly inadequate since the grounds asserted by the Respondent for Seymoure's discharge are ample and clear. Seymoure had in fact been frequently late for work throughout his brief employment. In the first part of October alone he had been late and orally reprimanded six times and had been finally given a written warning a week and a half before his discharge. In the following week he was again late four more times and on the last occasion, October 29, he had given Busche the irritating explanation that he had been to a Chicago nightclub until 2 or 3 that morning. As Busche testified, this would normally have resulted in his being given a reprimand and a 3-day layoff the next day, October 30. But on October 30, he did not report to work and, although he visited his friend, Terry, in the hospital, he made no direct attempt to notify Busche of his automobile accident but, as he told Busche late that afternoon, he relied upon Ott to tell Busche and Ott had not done so. Moreover, Seymoure's Oc- tober 30th absence was his second absence from work without calling in. All in all, the Respondent had been extremely patient with Seymoure and its eventual decision to discharge him for tardiness and absence from work without calling in is credible. Under these circumstances, it would be unrealistic to attribute any significance to the Respondent's failure to observe, precisely and literally, the provision of the plant rules with respect to the number of written notices an em- ployee might normally expect to receive before being dis- charged. Upon these considerations, I conclude that the Respondent discharged David Seymoure, not for any union activity on his part, but because of his repeated tardiness and his failure to report for work without giving prior notice, all of which constituted violations of the plant rules and good and suffi- cient cause for his discharge. E. Summary of Conclusions and Recommendation In sum, upon the facts shown by the credible evidence, I conclude that, contrary to the allegations of the complaint, the Respondent discharged Jay Terry, Frank Luther, and David Seymoure for good cause and not because of any union activity on their part. I also conclude that the evidence does not support the further allegation of the complaint that the Respondent interrogated employees concerning their union membership and activities and thereby violated Section 8(a)(1) of the Act. I Busche denied having received the message and Ott did not testify Accordingly, I recommend the following: 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER It is ordered that the complaint herein be, and the same is hereby, dismissed in its entirety.