Evans Packing Co.

EVANS PACKING CO. 401 Evans Packing Company and Roger Bush. Case 9- CA-5743 May 19, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On December 29, 1970, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceed- ing, finding that the Respondent had not engaged in the alleged unfair labor practices within the meaning of the Act, and recommended that the complaint be dis- missed 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, a brief in support of its exceptions, and a motion to re- open the record for the introduction of evidence. The Respondent filed a memorandum in opposition to mo- tion to reopen record for introduction of evidence. 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 hearing 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, briefs, motion,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent with our Decision and Order. The Charging Party, Bush, during the fall and early winter of 1969 through 1970, on several occasions dis- cussed with fellow employees the desirability of being paid overtime for hours worked in excess of eight each day. On January 22, 1970, Bush was discussing over- time pay with several other employees during their lunchbreak. Foreman Hood came into the lunch area. Bush asked Hood what could be done about getting the men paid overtime. Hood "just kind of laughed," ac- cording to the uncontroverted testimony of Bush, and told him that he would have to go to the office to see Hood's superiors since he, Hood, could not do any- thing about the matter. On January 29, 1970, Bush approached another supervisor, William Frazee, about getting overtime pay. Bush asked Frazee whether he (Frazee) could do something about getting all of the employees overtime pay for work over 8 hours per day. Frazee laughed and asked Bush, "What was wrong and aren't you getting ' In view of our findings herein it is unnecessary to pass on the General any overtime." Bush said they were getting overtime but were not being paid for it and, further, that the employees should get paid time and a half for working over 8 hours a day. Frazee said he could do nothing about it. The following day, January 30, Bush was discharged by Evans, vice president of the Respondent Company. The Trial Examiner concluded that a prima facie case had been established by the General Counsel. Nev- ertheless, he found that, though the General Counsel presented a prima facie case, the Respondent offered a credible explanation of why it discharged Bush which the General Counsel failed to rebut. Accordingly, the Trial Examiner recommended that the complaint be dismissed . We do not agree . Instead, we find that Bush was discharged for engaging in Section 7 concerted activities protected by Section 8(a)(1). Bush, prior to his discharge , had been employed by Respondent for 18 months . During the course of his employment, he had received eight raises which caused his hourly salary to rise from $1 .90 per hour to $3.15 per hour. Although Evans testified that he held back Bush's raises on one or two occasions because of his attitude, it is undenied that Bush was a satisfactory worker and there is record testimony that he was a hard worker who was willing to help other employees carry heavy quarters of meat and that he was assigned on occasion to train new employees. According to Bush's credited testimony, he was told by Evans at the time of discharge that he was being discharged for staying in the lockerroom too long. Evans at that time said nothing about tardiness or ab- senteeism . However, when the Respondent was queried by the Ohio authorities about the reason for Bush's discharge in the course of processing Bush 's claim for unemployment compensation, Respondent replied first that Bush was discharged for "habitual tardiness and insubordination." And, when the state authorities re- quested further detail , Respondent replied that Bush was "late many times in 13 months ; had been warned more than once and given the ultimatum once." At the time of the hearing, Respondent's counsel urged that Bush was discharged for "multiple causes," including tardiness, failure to give the company notice, failure to show up for work at all, immoral conduct, failure to perform his work at times while he was on the job, and loafing in the lockerroom. During the course of the hearing, additional reasons were advanced in- cluding among others that he had engaged in a fight with another employee and that the Respondent had been troubled by calls from Bush's creditors. Evans, however, during the course of his testimony eliminated a number of reasons offered for Bush's discharge. Thus, he admitted that the "immoral conduct" was, in and of itself, not a factor leading to the discharge. He also Counsel's motion to reopen the record to introduce additional evidence admitted that Bush was not the only employee who had 190 NLRB No. 70 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been caught loafing in the lockerroom and that the last time he caught Bush loafing in the lockerrom was 2 or 3 months prior to his discharge. Further, Evans stated that the fight incident had occurred a full 15 months prior to the discharge. And finally, Evans admitted that most of the calls from Bush's creditors occurred after he had been discharged. The Respondent's vice president, Evans, finally chose, after much discussion, one explanation which he testified was the precipitating reason why he discharged Bush; namely, tardiness and absenteeism. In this re- gard, according to Evans, Bush's work record continu- ally got worse and worse during the 4 months preced- ing his discharge. Of the 3 weeks Bush worked during the month of December he was off a half a day and tardy on 5 other days. In January, ... he was late two days the week of first and third. He was late one day the week of first and tenth. He was absent one day the week of first and tenth. He was absent a day, the 17th [a Saturday], and absent a half day of the 24th [a Saturday]. Evans further testified that, except for Bush, absentee- ism and tardiness was not a problem: "I mean it wasn't even close. We don't have this problem." The Trial Examiner relies on this portion of Evans' testimony and thereby finds that the Respondent has presented a rea- sonable explanation for the discharge,' overcoming the General Counsel's prima facie case, and, "in the ab- sence of further evidence," he recommended dismissal of the complaint. There was, however, additional evidence presented by the General Counsel in support of his case as well as certain statements made by Evans in cross-examina- tion which contradict his earlier assertions relied on by the Trial Examiner. In regard to employees' absenteeism at Respondent's plant, Evans, on cross-examination, admitted that he had tolerated several extended absences by employees who missed work because of illness or illness in the immediate family (an employee was absent caring for children while his wife was in the hospital). Former employee Lawrence Unroe, without contradiction, tes- tified: "Well, he [Bush] missed several days, like a lot of us guys did; I missed several myself because I was sick." Similarly, Hollingshead, presently employed by Respondent, testified that other employees had not re- ported for work because of being either intoxicated or out late at night, and further stated that he knew per- ' The Trial Examiner seems to suggest, that , as between tardiness and absenteeism , absenteeism was the more controlling factor leading to Bush's discharge since others were guilty of tardiness However , he stated that he has a "nagging doubt" as to this conclusion because Evans stressed "tardi- ness" rather than "absenteeism" in his letters to the state authorities The Trial Examiner thereafter offered the explanation that "both matters go to reliability in attendance " In view of the state of the record evidence, and the shifting positions of the Respondent, we shall examine both grounds, tardiness and absenteeism sonally about one employee who had been out drinking and playing cards, causing him to miss work. While the Trial Examiner seems himself to have downgraded the worth of Respondent's contention that Bush was tardy for work, it is still important to note additional testimony ignored by the Trial Examiner, since it relates directly to Bush's general reliability for attendance as compared with Respondent's other em- ployees. Evans himself admitted on cross-examination that he knew of of other employees who were consist- ently late for months; namely, Kinder and Vanco. Pat- terson, an employee, testified that "I'm late pretty often; maybe five, ten minutes; several of us come in late, but there's never nothing said about it." Unroe states "There were several of them that was five-three- four minutes late pretty often, but I don't remember the peoples' names and nothing like that. I don't know what time-I mean I didn't know exactly how many minutes late some of them was or nothing like that. I just notice some of them come in late pretty often." Hollingshead also commented that employees, on occa- sion, had come to work with a "good hangover." The above testimony, most of which was introduced by the General Counsel, at the very least casts doubt on the accuracy of Evans' assertion that Bush's tardiness and absentee record was singularly abnormal at Re- spondent's plant. Yet the Trial Examiner concluded that the General Counsel failed to rebut Evans' asser- tion, completely ignored the above-related testimony, and accordingly relied on Evans' testimony. We, how- ever, now consider this evidence and, in the light thereof, conclude that the General Counsel did indeed meet his burden of going forward with the evidence and of rebutting the Respondent's proffered explanation for Bush's discharge. The evidence is clear that Respond- ent tolerated among other employees a considerable amount of tardiness and absenteeism. It has failed to show that, in comparison with other employees, Bush's absenteeism and tardiness record was greater than other employees'.' Further, Respondent has failed to document the extent of the tardiness. We know not the reasons for the absences or whether the alleged tardi- ness was only a few minutes or several hours. But it would be unreasonable to assume that Respondent's reason for discharging Bush was just the large number of times he was absent or tardy in relation to the other employees, in the absence of evidence by the Respond- ent to support its assertion that Bush's attendance record was worse than the records of other employees which the Respondent continued to tolerate. ' In view of the evidence recounted above concerning tardiness and absenteeism of other employees, we consider Evans' testimony that Bush was "a notable exception" and "it wasn 't even close" as conclusionary and without substantiating support EVANS PACKING CO. Finally, the timing of Bush's discharge, not men- tioned by the Trial Examiner, casts even more doubt on the reliability of Respondent's explanation. Respond- ent has offered evidence to show that Bush had been habitually absent and tardy for over a year prior to his discharge. Respondent tolerated Bush's activities for a long time. Respondent, according to Evans' testimony, had only vaguely warned Bush about his excessive tar- diness and absenteeism. There was no specific flagrant abuse which precipitated the discharge. Indeed, the only intervening event immediately preceding Bush's discharge was his action in seeking to change the Re- spondent's overtime pay policies. In conclusion, we, as the Trial Examiner, find that the General Counsel has presented a prima facie case to support his allegation that Bush was discharged in violation of Section 8(a)(1) and has clearly met his burden in regard to Respondent's explanation of the discharge. From the record evidence, we find the Re- spondent's explanation of Bush's discharge unfounded. Respondent, at the hearing, offered many reasons for Bush's discharge. Most of them, upon closer scrutiny, turn out to be either not materially involved in the discharge or involve incidents which occurred substan- tially prior to the time of discharge. Evans, Respond- ent's vice president, finally, through the prompting of the Trial Examiner, set forth Respondent's primary reason for Bush's discharge, namely, tardiness and ab- senteeism, but contended that Bush was the only em- ployee it had with attendance problems. However, sev- eral former and present employees testified that absenteeism and tardiness were common and Evans also thereafter admitted that there had been other em- ployees who were persistently tardy and absent. Fi- nally, it appears that Respondent urges as a defense that Bush had been excessively tardy and absent for a long period of time. But even this defense must fail because there appears to be no reason advanced as to why Respondent decided to discharge Bush after tole- rating his activities for so long, and then only shortly after Bush engaged in concerted activities. Considering all of the above, we find that Bush was not discharged for the reasons advanced by the Respondent but that his discharge was motivated, at least in part, by his Section 7 concerted activities protected by Section 8(a)(1) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth above, occur- ring in connection with its operations, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY 403 In order to effectuate the policies of the Act, we find that it is necessary that the Respondent be ordered to cease and desist from the unfair labor practice found and from like or related invasions of the employees' Section 7 rights; to take certain affirmative ^fftion, in- cluding the offering of reinstatement to Roger Bush, with backpay computed on a quarterly basis, plus inter- est at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb- ing & Heating Co., 138 NLRB 716; and to post appro- priate notices. 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. By discharging Roger Bush on January 30, 1970, the Respondent violated Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Evans Pack- ing Company, Gallipolis, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from interfering with, restraining, and coercing its employees in the exercise of their Sec- tion 7 rights by discharging employees for engaging in activities protected by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act. (a) Offer to Roger Bush full and immediate reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by him because of the discharge, by payment to him of a sum of money equal to the amount he would have earned from the date of his discharge to the date of Respond- ent's offer of reinstatement, less his net earnings during said period with interest at the rate of 6 percent per annum, as provided in "The Remedy" set forth above. (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon applica- tion after discharge from the Armed Forces, in accord- ance with the Selective Service Act and the Universal Military Training and Service Act. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business at Gallipolis, Ohio, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Re- gional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge any employee for seek- ing, through protected concerted activity, to se- cure increased benefits and improved working conditions for himself and other employees. WE WILL offer Roger Bush his former job or, if that job no longer exists, a substantially equivalent job, without prejudice to seniority or other em- ployment rights and privileges , and WE WILL pay him for any loss suffered because of our discrimi- nation against him. EVANS PACKING COMPANY (Employer) CHAIRMAN MILLER, dissenting: I would adopt the findings, conclusions, and recom- mendations of the Trial Examiner. His analysis of the record and his application of the principles of burden of proof are, in my view, free of reversible error. As he points out, the Respondent's testimony (which he credits) as to the degree and amount of Bush's ab- senteeism, and to the effect that it was greater than that of other employees-("I mean it wasn't even close")- was not refuted by the General Counsel. It was the General Counsel's burden, once such testimony had been given, to establish, if he could, either by contrary testimony or by documentary evidence, that the tes- timony offered by Respondent was inaccurate or unreli- able. He did not do so.5 In this state of the record, the Trial Examiner prop- erly dismissed the complaint. In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " ' The Trial Examiner did not himself request production of the time and attendance records which, as he indicates, might well have been helpful in resolving the issue Examiners, like judges, have a substantial area of discre- tion in determining the extent to which they wish actively to participate in questioning witnesses and seeking out evidence No clear rules can or should be formulated to prescribe when or how that discretion should be exercised The experience and judicial aptitude of the Examiner will guide him in exercising it as each set of circumstances require It is, of course, obvious that a Hearing Officer in our representation cases has a greater duty to ferret out facts than does a Trial Examiner in the traditionally adversary unfair labor practice proceeding, where, as in the courts, primary reliance is placed upon the parties to prove such facts as they deem relevant and necessary to establish their case Dated By (Representative) (Title) We will notify immediately the above- named in- dividual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684- 3686. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner. This case heard at Gallipolis, Ohio, on November 5, 1970, pursuant to a charge filed the preceding July 14 and a complaint issued August 28, presents the question whether Respondent, herein sometimes called the Company, discharged the Charging Party on Janu- ary 30, 1970, because he engaged in concerted activities for the purpose of mutual aid or protection of the Company's employees with respect to overtime compensation. Upon the entire record, including my observation of the witnesses, and after due consideration of the beefs filed by General Counsel and the Company, I make the following. FINDINGS OF FACT I THE BUSINESS OF THE COMPANY EVANS PACKING CO. 405 Respondent, an Ohio corporation engaged at Gallipolis in the processing and wholesale sale of meat products, annually receives material valued in excess of $50,000 directly from outside the State, an i is therefore an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICE A. The Evidence in Support of General Counsel Roger Bush worked at the Company's packinghouse for 18 months until his discharge, during which time he received periodic wage increases and apparently performed his work in satisfactory fashion when he was present. In October 1969 (well over 6 months before the filing of the charge) Bush discussed with a fellow employee the benefits of having a union organize the Company's employees. The next day the Company's president and vice president, Tim and Merle Evans, called Bush into the office, rebuked him for talking about a union, and explained the benefits the Company gave him. Bush told the officials he would not talk about a union again.' During the fall and early winter of 1969-70, Bush on sev- eral occasions discussed with fellow employees the desirabil- ity of their being paid at an overtime rate for hours in excess of 8 in a day. On January 22 Bush asked Foreman Hood what Hood "could do about getting us paid overtime for anything over eight hours a day," but Hood "just kind of laughed" and he said, "Well, you'll have to go to the office. I can't do anything about that." One week later Bush reiterated his suggestion of daily overtime to Foreman Frazee, who also replied that he could do nothing about it. The next day the Company discharged Bush. Merle Evans notified Bush of his discharge. According to Bush, Evans "mumbled something about staying in the locker room too long," and when Bush denied that he stayed longer than anyone else, Evans replied that he did not want to argue with Bush. Evans at that time said nothing about tardiness or absenteeism, and in reply to Bush's question admitted that Bush was a good worker. Thereafter Bush filed a claim with the Ohio authorities seeking unemployment compensation. The Company re- sponded on February 6 to the initial request of the state authorities as to the reason for Bush's discharge by stating that he was discharged for "habitual tardiness and insubordi- nation." When the state authorities asked for further detail, Merle Evans wrote the following explanation: ... late many times in 13 months; had been warned more than once and given the ultimatum once. The prob- lem is getting to work on time. It's the employee's re- sponsibility and not management's. The only way I can prove his tardiness is to go back on his time cards week after week. The employee was not told at the time of discharge any one specific reason for being discharged, the reason being I didn't want to spend the afternoon of my time arguing with him. I felt that he knew whether he would admit it or not, why he was discharged. The employee just doesn't meet our requirements for an em- ' The testimony summarized above is that of Bush, whom I credit in this regard Merle Evans testified that on the occasion in question he "told [Bush] our side and our thinking of the Union" but denied stating that he "didn't want any more of that kind of talk" and denied threatening Bush with discharge if he renewed it Tim Evans, although present at the hearing, did not testify ployee. I thought that with some help and advice , I could get these things worked out. I couldn't. B. The Company's Explanations of the Discharge During the cross-examination of the first witness, company counsel and the Trial Examiner engaged in the following colloquy concerning the Company's reasons for discharging Bush: MR JENKINS He was discharged for multiple causes, including tardiness, including failure to appear for work at all; failure to give the company notice, and carrying on in a notorious affair and being drunk with another woman in the community here, which led to this tardi- ness and this failure, and we have this woman here under subpoena, and we intend to pursue this completely. And they have introduced evidence that he couldn't get to work because his wife doesn't get him up, and we intend to show why his wife couldn't get him up, only that it was somebody else. TRIAL EXAMINER; Well, Mr. Jenkins, as I understand then, the Company's defense is that it discharged Bush for multiple tardiness, for failure to show up for work, and for, to use a word of somewhat vague meaning, immoral conduct? MR JENKINS That's correct, Your Honor. TRIAL EXAMINER And each of those was a contribut- ing factor to the discharge? MR JENKINS Yes, sir, and, in addition, there was another problem also. He was engaged in a fight at the plant. MR JENKINS Now, Your Honor, excuse me just a second. I want to be completely candid with Your Honor. You asked me a minute ago about the company's theory or of the various reasons for his discharge, and I've just recalled that I've overlooked one, and that was his failure to perform his work at times while he was on the job, specifically, loafing in the locker room I think I should mention that as an additional factor for which he had been reprimanded. TRIAL EXAMINER Well , was that a cause of his dis- charge? MR JENKINS Yes, sir. That was one of the contribut- ing factors. During the examination of the last witness, Merle Evans, it developed that the Company had also been troubled with calls from Bush's creditors, and that this was an additional ground for discharge. Evans' testimony, however, diminished some of the reasons earlier advanced by company counsel. With respect to Bush's personal life Evans admitted that this would not have both- ered the Company if it had not affected Bush's work The fight in the plant occurred 15 months before the discharge and was merely part of the general background. Evans fur- ther testified that Bush was not "the only one that spent a lot of time in the locker room because a lot of them did." The principal locker room episode involving Bush had occurred in October or November preceding his January 30 discharge Even as to tardiness, a major problem with Bush, there is some evidence that other employees had similar problems Evans testified that on January 29 he recommended at the regular Thursday meeting of the executive committee that Bush be discharged. On the witness stand after reviewing some of his earlier complaints against Bush, he continued as follows: 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Well, what happened in January of 1970 leading up to this decision to fire Bush? A. The biggest thing that happened, as far as the influence of my decision, I can give you five or six other things. But during the month of January 1970, Mr. Bush was, was not there. He missed four days work during the 20 working days of that month. He was late on three other days. He was late two days the week of first and third He was late one day the week of first and tenth. He was absent one day the week of first and tenth. He was absent a day, the 17th, and absent a half day on the 24th. Q. Now looking back at his employment record for, say, September, October, November, and December, and comparing that to January, how do they come out, of the earlier period, compare with this record that you testified about in January? A. It just kept getting worse. He missed some time in October. He missed some time in November. In Decem- ber he was late five different days. In December That was besides he took a week of vacation then. Q. I'm not talking about his vacation. I'm talking about- A. So he, really, in December, he had three, really, working weeks, and of that week, he was off another half day and he was late five other days. Then in January, it just got worse after Christmas, and this was the biggest thing in my decision, was that I just can't look after a bunch of people and them not be to work; and I just put up with it as long as I was going to put up with it. Evans further testified that, apart from Bush, absenteeism was not a problem at the plant. His testimony includes the following exchange: Q. (By Trial Examiner) How many times is an ordi- nary employee absent before it comes to your attention? A. Well, I know every day when he's absent. I know everybody who is not, unless I'm out of town or some- thing If I'm at the plant, I know who is not there that day. Q. Now if they're not there because of sickness you know? A. I know why and I mark on their time cards, ex- cused, unexcused, this type of thing. Q. How many unexcused absences does an ordinary employee have in the course of a month? A. Very nil, unless you've got-. Q. Bush was a notable exception? A. Oh, yes. I mean it wasn't even close. We don't have this problem. Q. You maintain attendance records other than time cards? A. We, if someone is not there at a particular day, we mark on their time cards, sick, excused, funeral, or this type thing. We maintain it as far as his sick leave pay and this type of thing. C. Analysis and Conclusions I have no doubt that Bush was engaging in a statutorily protected concerted activity when, after first discussing the matter of daily overtime with his fellow employees, he spoke to two supervisory employees (Hood on January 22, and Frazee on January 29) concerning daily overtime pay for employees. Although there is no direct evidence that Hood or Frazee relayed this information to the Company, and even though Merle Evans testified that he did not learn of Bush's conversation with Frazee and Hood until after Bush's dis- charge, it is permissible to discredit Evans in that respect, particularly as he admitted learning almost immediately after it occurred of Bush's prounion conversation the previous fall. Also, especially in view of the Company's hostility to em- ployee self-organization, and the further fact that one em- ployee spoke up in support of Bush's statement to Hood, it might be inferred that Bush's discharge the day after he mentioned daily overtime for the second time was not un- related to his apparent interest in pushing that matter. In short, the General Counsel established a prima facie case, albeit not an overwhelming one, that Bush's concerted ac- tivity contributed to his discharge. To some extent, the Company's explanations augmented this prima facie case. The Company in its correspondence with the Ohio unemployment authorities first referred to "in- subordination" as well as tardiness, and the record contains no hint of the former unless "concerted activities" are consid- ered "insubordination." Also the insistence of company counsel on injecting Bush's allegedly immoral behavior into the litigation proved something of a boomerang when Evans admitted that he was concerned with Bush's attendance, not with his private life. The reliance on such ancient history as the 1968 fight in the plant also does more harm than good to the Company's case, for, if that episode played a role in Evans' determination, it is not unfair to infer that Bush's much more recent prounion conversation also entered into Evans' mind when he weighed the question whether to dis- charge Bush. To state that inferences are permissible and that a prima facie case exists is not to say, however, that they are inescapa- ble, and that a finding must be made. In my judgment Evans' testimony concerning Bush's attendance in January rebutted the prima facie case. I was impressed not only with the amount of time Bush missed but also with Evans' testimony that absenteeism was not a problem with any other employee. At this point, it seems to me, the burden of going forward with the evidence reverted to General Counsel. I found Evans a credible witness in this portion of his testimony, and, in the absence of further evidence, I would dismiss the complaint.' This brings us to a critical issue in this case: What about the timecards which Evans says are kept for 5 or 10 years? These records would establish whether in fact Bush's record in January was as inferior to that of the other employees as Evans declared. To be sure, the cards are in the Company's possession, and it could have produced them. However, it produced definitive testimony from Evans as to his motiva- tion, and it is under no legal duty to produce substantiating documentation. General Counsel could have subpenaed the records if he chose to challenge the bona fides of Evans' representation. In my view the timecards hold the key to the case, for, if they do not support Evans in this regard, I would view the scales as tipping in Bush's favor. To be sure, the Trial Examiner also has power to call witnesses and to require the production of evidence. Yet a Trial Examiner's function is to judge the case, not to prosecute it or defend it. Ater brief hesitation, not reflected on the record, I decided not to call for the timecards. This is an area in which, I am sure, other Trial Examiners as well as I would welcome the guidance of the Board. If in the Board's judgment the Trial Examiner in a case of this nature should himself call for the production of the documents, this case should be remanded. In its present ' I am left with a nagging doubt as to why Evans stressed "tardiness" rather the "absenteeism" in his letter to the state authorities only a few weeks after Bush's discharge Apparently Bush was guilty of both offenses, but tardiness was a matter of which others were also guilty Both matters go to reliability in attendance, but Evans' letter is most specific as to "late- ness " EVANS PACKING CO. 407 posture, however, while I am by no means free of doubt , I Upon the foregoing findings of fact, conclusions of law, and would dismiss the complaint for failure of General Counsel upon the entire record, and pursuant to Section 10(c) of the to sustain his burden of proof. Act, I hereby issue the following recommended: CONCLUSIONS OF LAW ORDER The preponderance of the evidence does not establish that The complaint is dismissed in its entirety. the Company engaged in the unfair labor practice alleged in the complaint.