Hackett Precision Co.

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hackett Precision Company and Teamsters, Chauf- feurs, Helpers & Taxicab Drivers Local Union No. 327 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 26-CA-3736 May 19, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND KENNEDY On December 3, 1970, Trial Examiner Herbert Sil- berman issued his Decision in the above-entitled pro- ceeding, finding that Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommending that these allegations be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions and a supporting brief and 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 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 and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner concluded that the General Counsel had failed to prove that Respondent's layoff and discharge of Grady L. Sartain were dis- criminatorily motivated in violation of Section 8(a)(3) and (1) of the Act. We find merit in the General Coun- sel's exceptions to these findings. As the Trial Examiner found, Sartain was laid off for a week on Monday, June 22, 1970, for having failed to work on the preceding Saturday.2 That evening six or eight employees stopped at Sartain's home, which is on the road that leads to the Company's plant, and spoke to Sartain about getting union cards. As they were grouped about the car which they came in, Respond- ent's president, Thomas C. Hackett, drove by. On the following morning, Sartain obtained union authoriza- tion cards from a representative of the Charging Party. That evening several employees stopped off at Sartain's ' We hereby correct the following inadvertent errors in the Trial Ex- aminer's Decision In the sixth sentence of the fifth paragraph of section III, the record shows that six or eight employees stopped at Sartain's home rather than six or seven, and in the second sentence of the fourteenth paragraph of section III, the Trial Examiner referred to July 29 where it is clear that he meant June 29 ' All dates hereinafter are in 1970 home, on which occasion Sartain divided the cards with two other employees. During the week of his sus- pension, Sartain contacted six or eight other employees by telephone, and three or four more who stopped by his house. Sartain obtained two signed authorization cards as a result of his efforts. On June 29 at 7:30 a.m. Sartain returned to work. At about noon he was instructed to report to Hackett who told him that he was being laid off without offering any explanation therefor. The next evening, June 30, Sar- tain stopped Respondent's foreman, James Robertson, as the latter was driving past Sartain's home, and in- formed him that "he had about 75 percent of the em- ployees on cards." Robertson reported this to Hackett the following morning, July 1. That same day Hackett found an authorization-card from the Charging Party on the floor of the plant. In addition, that day Hackett received a letter from a union other than the Charging Party announcing the commencement of an organiza- tional drive. At 5 o'clock that same afternoon, Hackett held a meeting of all his employees, at which he discussed union interest at the plant and stated that if they wanted a union it was all right with him. Hackett then walked away. Immediately thereafter, the employees voted to reject unionization by a vote one short of unanimity. The result was reported to Hackett by his foreman. After the meeting several employees ap- proached Hackett and complained that Sartain was "trying to rabblerouse" and to "create one group to fight against another," and that Sartain had lied to them by telling them "he had certain people signed up and they would go to find out and he hadn't." It was immediately after this expression of resentment on the part of the employees that Hackett instructed Wally Williams, his truckdriver, to inform Sartain that the latter should remove his toolbox from the plant. Hack- ett admitted that he took this action in part because of the aforesaid remarks of his employees. The question first presented is whether Respondent had knowledge of Sartain's union activities at the time of its layoff of Sartain on June 29. We believe it is a fair inference that Hackett had such knowledge. For one thing, Respondent employs only 37 or 38 employees and its facility is not divided into departments, thus providing a means of ready communication among the employees. Between June 22 and 29, Sartain contacted at least 11 of Respondent's employees in an effort to gain their support for the Charging Party. In addition, Hackett admitted that "I learn about everything in the shop because everything is brought to my attention," and acknowledged that stories passed freely through his shop which he described as "just like one back- yard." Taking these facts into consideration together with the fact that on June 22, Hackett drove by Sar- tain's house where a number of employees were 190 NLRB No. 72 HACKETT PRECISION CO. 409 grouped around a car discussing the matter of bringing in a union, it is inconceivable that Sartain's leading role in attempting to organize employees went unnoticed by Respondent before June 29. The Trial Examiner found it unnecessary to resolve the question of Respondent's knowledge of Sartain's organizing activities, but we conclude that, on June 29 when Sartain was laid off, Respondent had knowledge of Sartain's union activi- ties. In addition, we find that the circumstances attending Sartain's layoff tend to discredit the varying explana- tions proffered by Respondent. At one point in his testimony, Hackett stated that Sartain was laid off on June 29 because the Company had completed all work requiring the use of the outside dimension grinder which Sartain operated and there was nothing else that Sartain was able to do which would be helpful. How- ever, at a later point in Hackett's testimony, Hackett stated that he laid off Sartain on June 29 because Sar- tain deliberately operated the punch press carelessly and in such a manner as to damage the dies so that he could "loaf around" while his machine was being re- paired. Moreover, Sartain's separation notice from Re- spondent to the Tennessee Department of Employment Security specified that Sartain was separated from Re- spondent for "lack of work." Hackett testified that as of January Sartain was by far his worst employee and had cost him thousands of dollars because of allegedly unsatisfactory job performance, that between January 31 and June 14, 20 employees were terminated because of declining business, and that Hackett sought to lay off the least satisfactory employees first. Yet Sartain was the last employee laid off. In these circumstances, we can only conclude that, having shown special tolerance for Sartain's alleged incompetent performance over a long period of time, Hackett's summary layoff of Sar- tain on June 29, Sartain's first workday after he under- took to begin union activity among Respondent's em- ployees, was due to Sartain's union activities and was in violation of Section 8(a)(3) and (1) of the Act. This conclusion is further buttressed by the above-noted fact that Hackett in his testimony gave contradictory rea- sons for Sartain's layoff which the Trial Examiner made no attempt to resolve. Contrary to the Trial Examiner, the fact that Hack- ett has been a member of a union since his youth and that he had always told his employees that he was not opposed to unions and would negotiate with one, does not necessarily preclude a finding the Hackett nonethe- less resented Sartain's activities. The fact remains that in all the years Hackett operated his own business, no union had ever sought to organize his employees. And while he might accept union organization once it became a fact of life, he took no pains to point out to his employees when they complained of Sartain's ac- tivities that his conduct was protected and legitimate. The result of these complaints we note hereinafter. Nor can we agree with the Trial Examiner that the precipitate layoff of June 29 had no more significance than the June 22 layoff, because it was "of much the same nature as the disciplinary layoff given Sartain on June 22 which is not contended to have been unlawful." But the two layoffs are not comparable . There was no question that Sartain had deliberately failed to report to work on a Saturday although he had been requested to do so. A definite event calling for disciplinary action had occurred. Hackett was informed of it . But the precipitate action on June 29 was without advice from his foreman that Sartain had deliberately , or even negli- gently, damaged a die. Hackett jumped to that conclu- sion, and apparently it served his purpose. While we conclude that Sartain's layoff of June 29 was unlawfully motivated, there is nothing in the record to indicate that , unlike previous layoffs, it was intended to be a permanent one. Hackett did not then instruct Sartain to remove his toolbox , apparently a normal procedure if the employee had been perma- nently separated, nor was he instructed to do so on June 30. It was not until Hackett was made aware of employee reaction to his speech on union organization, did he, by notifying Sartain to remove his toolbox, take action signifying that Sartain 's employment was ter- minated. Although Hackett's decision on July 1 to make Sar- tain's layoff permanent must be regarded as motivated by the same unlawful considerations which motivated the layoff, even were we to hold that the June 29 layoff was not thus motivated, we would nevertheless find that Sartain's discharge on July 1 was in violation of Section 8(a)(3) of the Act. As noted, immediately after the meeting on July 1, at which all but one of Respond- ent's employees voted against unionization , even one formed by themselves as put forth by Hackett , several employees approached Hackett and, according to Hackett, complained to him that Sartain was a trou- blemaker, a rabblerouser by "trying to create some- thing between the men all the time, create one group to fight against another, this type of thing ," and that Sar- tain had lied to them by telling them that certain other employees had signed union cards when in fact these employees had not done so. Hackett admitted that he had then instructed his truckdriver to tell Sartain that he should remove his toolbox from the plant , in part, he said, because of these complaints. Since the complaints on July 1 followed so closely on the employees' vote to reject all union representation, we think, contrary to the Trial Examiner, that the em- ployees' complaints were motivated by resentment of Sartain for having involved them in union activities and did then reflect an antiunion bias. Indeed , the specific language used could hardly convey any other meaning. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If Sartain did become obnoxious to the employees that sentiment can only be attributed to Sartain 's organizing activities. It is well established that an employer who yields to an antiunion bias of his employees and termi- nates an employee for such reason discriminates against such employee in violation of Section 8(a)(3) of the Act.' Hackett admitted that in ordering Sartain to remove his toolbox he was motivated 'in part because of the employees' attitude toward Sartain. We find that Respondent's discharge of Sartain was for such reason in violation of Section 8(a)(3) and (1) of the Act. THE REMEDY We have found, contrary to the Trial Examiner, that Respondent engaged in certain unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, by laying off and subsequently discharging Grady L. Sartain for engaging in protected union activities . In our opinion, it is necessary in order to effectuate the purposes of the Act that Respondent be ordered to cease and desist from engaging in such unlawful activity and to rein- state the employee with backpay. Upon the basis of the foregoing findings of fact and upon the record as a whole, we make the following conclusions of law. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By laying off and discharging employee Grady L. Sartain because of his union activities , Respondent vi- olated Section 8(a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Hackett Precision Company, Nashville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth below: 1. Cease and desist from: (a) Discouraging union activities of its employees by laying off and discharging Grady L. Sartain because he engaged in protected union activities. ' Hudson Motor Car Company, 34 NLRB 815, enfd 128 F 2d 528 (C A 6), Beiser Aviation Corporation, 135 NLRB 433; Elias Brothers Big Boy, Inc., 137 NLRB 1057 (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action , which is deemed necessary to effectuate the policies of the Act: (a) Offer to Grady L. Sartain immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay which he may have incurred by reason of the Respondent's discrimi- nation against him by payment to him of a sum of money equal to that which he normally would have earned as wages from June 29, 1970, the date of the discrimination against him to the date of the Respond- ent's valid offer of reinstatement . Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (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. (c) Post at its Nashville, Tennessee, plant copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 26, after being duly signed by Respond- ent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. MEMBER KENNEDY , concurring in part and dissent- ing in part: I agree with my colleagues in their finding that Re- spondent violated Section 8(a)(3) and (1) of the Act by its discharge of Grady L. Sartain. The record estab- lishes that Respondent sent word to Sartain to remove his toolbox, thereby converting his indefinite layoff of June 29, 1970, to a discharge, because, inter alia, "em- ployees complained to [President Hackett] that Sartain ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " HACKETT PRECISION CO. had lied to them about who signed union cards." In my view, the discharge of an employee to placate other employees under these circumstances is a violation of Section 8(a)(3) of the Act. This is true even though the record is totally devoid of any evidence of hostility of the Employer toward the Union. I would affirm the Trial Examiner in all other re- spects. I do not believe the layoff on June 29 was moti- vated by discriminatory considerations. Contrary to my colleagues, the record does not support, in my view, an inference of knowledge by Respondent of Sartain's union activities until the evening of June 30 when Sar- tain informed Foreman James Robertson that "he had about 75 percent of the employees on cards." Further- more, Sartain's layoffs of June 22, 1970 (before he had discussed the Union with any employees), and June 29, 1970, are comparable in my opinion. The record shows that Hackett precipitously laid off Sartain on June 22 for not having worked the previous Saturday. Hackett did not investigate Sartain's claim that Foreman Rob- ertson had granted him permission to be off. Hackett again precipitously laid off Sartain on June 29 after his observation of the damaged dies. In my judgment the Trial Examiner was clearly correct in his resolution of the June 29 layoff aspect of the case. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things, except as provided in a lawful union-security contract. WE WILL NOT discourage protected union ac- tivities of our employees by discharging, laying off, or otherwise discriminating against any employees because of their protected union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of their rights guaranteed in Section 7 of the Act. WE WILL offer to Grady L. Sartain immediate and full reinstatement with backpay. HACKETT PRECISION COMPANY (Employer) 411 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, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901- 534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Trial Examiner: Upon a charge filed on July 9, 1970, by Teamsters, Chauffeurs, Helpers & Taxicab Drivers Local Union No. 327 affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, a complaint dated August 28, 1970, was issued alleging that Hackett Precision Company has engaged in and is engaging in conduct constituting unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In substance, the complaint al- leges that about July 1, 1970, Respondent discharged Grady L. Sartain because he joined or assisted the Union. Respond- ent filed an answer generally denying that it had engaged in the alleged unfair labor practices. A hearing in these proceed- ings was held in Nashville, Tennessee, on October 22, 1970. Subsequent to the hearing, General Counsel and Respondent filed briefs which have been carefully considered Upon the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY Respondent, a corporation, is engaged in the operation of a tool-and-die shop at its plant located in Nashville, Tennes- see. During the 12 months preceding the issuance of the complaint, the Company, in the course and conduct of its business, sold and shipped products valued in excess of $50,- 000 from its Nashville plant directly to points outside the State of Tennessee, and, during the same period, Respondent purchased and received products valued in excess of $50,000 at its Nashville, Tennessee, plant which originated from places located outside the State of Tennessee. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Ili THE ALLEGED UNFAIR LABOR PRACTICES The single issue in this case is whether Respondent dis- charged Grady L. Sartain because of his efforts to organize the employees on behalf of the Union. Respondent operates a small tool-and-die plant, which at the time of the hearing employed approximately 38 production workers. In charge of its operations is Thomas C. Hackett, Respondent's president, who has been a tool-and-die maker most of his adult life and who still carries a journeyman's card from the United Au- tomobile Workers of America. Hackett is thoroughly familiar with all the equipment in the plant and spends most of his time personally supervising and directing plant operations. Subordinate to Hackett is Foreman James Burton Robertson, who is the only acknowledged supervisor in the plant, and four leadmen, including one Ralph Evetts. The only witnesses at the hearing were Sartain, Hackett, and Robertson.' Sartain first worked for Respondent about 7 years ago. His employment then lasted only 2 or 3 months. According to Hackett, he was trying to show him how to do a job and he got mad and said, "I quit. You damned people don't have no sense no way."' Nevertheless, Hackett hired Sartain a second time on September 25, 1968. Sartain was assigned to operate an outside dimension grinder. Towards the end of May 1970 the Company exhausted all work for that machine. Sartain was then assigned to operate various other machines until his discharge a month later. The Company has been in business approximately 9 years. Prior to 1970 there had been steady improvement in its busi- ness so that the Company had no occasion to lay off em- ployees. However, in 1970 it became necessary for Respond- ent to reduce its work force. Between January 31 and June 14, 1970, 20 employees were terminated with 15 of the termi- nations occurring between May 24 and June 14. It does not appear that the Company has any formulated layoff or recall policy.' Hackett testified that when the Company's business declined he sought to lay off the least satisfactory employees first. Prior to his final termination, Sartain was twice laid off for disciplinary reasons, each time for a period of 1 week. The first layoff was approximately 1 month after he began work in September 1968. The next layoff was on Monday, June 22, 1970. On this occasion Sartain was disciplined for having failed to work on the preceding Saturday. Sartain considered the layoff unfair because, according to Sartain, he had been excused by Foreman James Robertson Sartain testified that he is a professional musician, that on Friday, June 19, he had told Robertson that he would not be in the next day because he was scheduled to play a show in Alabama and Robertson replied that the work he was then doing, which was operating As reflected by their testimony, manner, and attitudes, both Sartain and Hackett are willful personalities. Hackett's testimony suggests that as an employer he is authoritative but realistically indulgent in his dealings with his employees Thus, Hackett permits the employees during working hours to freely talk with one another and to drink coffee subject, however, to the possibility of discharge if the privilege should be abused Also, Hackett testified that he recognizes that every employee loafs to some extent and that You don't find one that hits grit all the time " Sartain testified, "I just walked out and quit" because Hackett was unreasonable about an explanation of a die section Hackett testified, "I never know if I might call a man again That's one thing that I don't know, if I will ever call him again or not " a punch press, would be waiting for him on Monday." Re- gardless of whether the layoff may have been unreasonable or unfair there is no contention that it was unlawful. However, according to Sartain, the layoff precipitated an organizational effort on his part which had the support of other employees. Sartain testified that when he reported for work on June 22, "Jim Robertson met me at the clock and said, `I am going to lay you off for a week,' the old man said lay you off, and I said, 'For what?' and he said `Because you didn't work Satur- day."' According to Sartain, Robertson explained to him that Robertson had told Hackett that Sartain wasn't the only employee who had taken Saturday off, but Hackett had said that it didn't matter and that he should lay off Sartain for a week anyhow. Sartain told Robertson that he would contact the Labor Board, to which Robertson replied, "I don't blame you. Somebody needs to do something around here."' Sartain testified that several other employees also resented the fact that he had been disciplined merely for having been absent from work on a Saturday. Sartain's home is on the road which leads to the Company's plant. According to Sartain, on the night of his layoff, June 22, six or seven employees stopped at his home. As they were grouped about the car, some inside and others outside, Sartain observed Hackett drive by. The sense of the conversation among the men, according to Sar- tain, was that he should get union cards for their signatures They had no preference and he chose the Teamsters. The next day Sartain obtained authorization cards from Gerald D. Vestal, a business agent of the Union (Local 327, Teamsters), and that night divided the cards with employees Kai Medlin and Charley James. Sartain testified that during the remain- ing part of the week he contacted six or seven employees by telephone and three or four other employees in person. He succeeded in obtaining two signed authorization cards from the employees he had contacted. He further testified that he tried to keep his union activities as quiet as possible. Sartain returned to work at 7:30 in the morning on June 29. He testified that he operated a surface grinder until 10:15 a.m. when Leadman Ralph Evetts assigned him to operate the punch press with Church Howlett, an apprentice who has had about 1 year's experience in the trade. According to Sartain, he operated the press until 11.50 a.m. with no more than the usual problems and without any need to stop the press for repairs At 11:50 a.m Evetts instructed him to report to Hackett who informed him that he was being laid off because there was no more work. Hackett testified that he had hired Sartain in September 1968 to operate the outside dimension grinder because he was sorry for Sartain who needed a job and because Hackett wanted to help him. Hackett believed that Sartain could oper- ate the grinder. However, Sartain's work was never good, although Hackett spent a great deal of time trying to show Sartain how to do the job properly. Sartain was terminated on June 29, 1970, because, according to Hackett, the Com- pany had completed all work requiring the use of the outside dimension grinder and there was nothing else that Sartain was able to do which would be helpful. Hackett explained that Sartain had become indifferent towards his job and was not trying to improve. When the outside dimension grinding work was exhausted Hackett tried Sartain on other work but Sartain put even less effort in such work than he had given to the grinder Hackett testified, "he was not interested in going any further." Of the 20 employees who were laid off Robertson denied that he had excused Sartain from working on Satur- day, June 20 Similarly, Hackett testified that no one had told him that Sartain had been excused from work on Saturday, June 20 ' Robertson denied making the statements attributed to him by Sartain other than that he informed Sartain of his layoff HACKETT PRECISION CO. 413 Sartain was the last. Hackett testified that he did not lay off Sartain sooner because he felt sorry for Sartain and wanted to help him.' The precipitating reason for laying off Sartain on June 29, according to Hackett, was that Sartain operated the punch press carelessly and in such a manner as to damage the dies. This caused the press to be idled several times that morning while the dies were being repaired. It was Hackett's opinion that Sartain deliberately caused the damage in order that "he could get up in the shop and loaf around." Hackett further testified that whenever he looked up he saw Sartain away from his machine wandering around the shop talking to peo- ple. Neither Leadman Evetts nor Foreman Robertson com- plained to Hackett that day about Sartain. However, Hackett explained that he observed Ralph Evetts carrying the dies for repair three or four times that morning and one of those times he instructed Evetts to replace the punches in the die. Hackett testified that he knew from his long experience as a tool-and- die maker why the die was being damaged which, in this instance, was because the metal stock was cocked while being fed into the press. The next evening Sartain stopped Foreman James Robert- son as the latter was driving past Sartain's home. During the conversation Sartain said that "he had about 75 percent of the employees on cards." Robertson reported this to Hackett the following morning. That same day Hackett found an authori- zation card from the Union (Teamsters, Local 327) on the floor in the plant. Also, in the afternoon of the same day, Hackett received a letter from the International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 155, advising the Company that the Machinists were conducting an organizing campaign among Respond- ent's employees and quoting portions of Sections 7 and 8(a) of the National Labor Relations Act respecting employees' statutory rights. At 5 o'clock that same afternoon (Julyl) Hackett held a meeting of all the employees in the plant. He called their attention to the Teamsters card which he had found and to the letter which he had received from the Machinists. He said it appeared that they were interested in a union. He informed them that he has no objection to dealing with their represent- ative and does not care which union they select, including a union formed by themselves if that is what they wanted. Hackett was asked if they could vote about the matter. He replied that it was not up to him to tell the employees what they should do and that they should call their representatives to the plant and take the vote. He advised the employees that "if a majority wants a union, you are welcome to it, and I don't care what union it is, even if it is your own union." One of the employees said that he demanded that a vote should be taken at once. Hackett walked away. His foreman later told him that the vote was one for and all the rest against. Following the meeting, Hackett posted the Machinists let- ter on the bulletin board. In pencil, he had written on the letter the following: "We agree this is your American right.' But no one is compelled to join or can be threatened." Hack- ett testified that he received similar letters from unions in the past and it always has been his practice to post such letters. On July 1, after the employees' meeting, Hackett instructed Wally Williams, the truckdriver, to inform Sartain that the latter should remove his toolbox from the plant. There was ' Hackett testified that as of January 1970 Sartain was by far his worst employee because "he got to where he didn't care any more " Hackett further testified that Sartain "has caused more damage on any job that I have put him on than any man that has worked for me actually " ' Reference is to Section 7 of the National Labor Relations Act which is quoted in the Machinists ' letter a two-fold reason, according to Hackett, for this action. First, about 3 months earlier Hackett found it necessary to reim- burse an employee for tools which had disappeared after the employee's termination but before the employee had removed his toolbox and Hackett didn't want a repetition of such expense. A second reason was that after the meeting on July 1 several employees told him that they didn't want to work with Sartain anymore. They complained to Hackett that Sar- tain was a troublemaker, a rabblerouser by "trying to create something between the men all the time, create one group to fight against another, this type of thing"; and that Sartain had lied to them by telling them that certain other employees had signed union cards and that the might as well do the same when later they learned that such other employees had not signed any cards. In this case there is a failure on the part of both General Counsel and Respondent to call corroborating witnesses where corroboration would seem to have been available. There is some direct conflict between testimony of Sartain and that of Hackett and Robertson. For instance, Sartain testified that from 10:15 a.m. to 11:50 a.m. on June 29 he worked with Church Howlett and during that period there was no unusual difficulty with the punch press. Church Howlett was not called upon to corroborate Sartain. On the other hand, Hackett testified that during the same period of time he observed Sartain loafing and Leadman Ralph Evetts carrying the dies from the punch press to be repaired. Evetts was not called upon to corroborate Hackett's testimony. Of necessity, my determinations of credibility in this case largely depend upon the impressions made upon me by the witnesses as they gave their testimony. Of the three witnesses, I am of the opinion that Sartain was the least reliable. General Counsel advances alternative, although compli- menting, theories in support of the complaint. First, he con- tends that Sartain was discharged on July 29 because Hackett had learned of Sartain's efforts to organize the employees. General Counsel ascribes to the Company knowledge of Sar- tain's organizational efforts by reason of the fact that Hackett passed Sartain's house on the night of June 22 and saw Sar- tain conversing with a group of employees and that the plant is small so that matters of common interest are soon learned by everybody. Even if I assume that Hackett had learned of Sartain's union activities there is no evidence whatever that Hackett was hostile towards the Union or towards employees who were seeking to promote the Union. To the contrary, Hackett testified that he has been a member of a union since his youth when he started in the trade, that he has spoken about unions to his employees and has always told them that he is not opposed to unions and that unions can do a lot of good, and that if they wanted a union it was all right with him, he would never object to a union because he "couldn't knock the thing that [he] had fought for...... Even Sartain testified that prior to June 22, 1970, Hackett "said he would negotiate for a union anytime they (the employees) wanted it." The fact that Sartain was discharged precipitantly by Hackett without any investigation, other than casual observa- tion, as to whether Sartain was responsible for the alleged damage to the dies is not necessarily incriminating. The ac- tion taken against Sartain on June 29 from the point of view of its haste and its arbitrariness was of much the same nature as the disciplinary layoff given Sartain on June 22 which is not contended to have been unlawful. General Counsel's alternative argument is that on June 29 Sartain was only temporarily laid off and he was not effec- tively terminated until July 1 when employees complained to Hackett that Sartain was a troublemaker, a rabblerouser, had lied to them in connection with the solicitation of authoriza- tion cards for the Union, and that they didn't want to work 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Sartain any longer. Assuming that Sartain was ter- minated on July 1 (rather than June 29), the action would be unlawful only if Hackett had yielded to an antiunion bias on the part of his employees. There is no evidence of such bias on their part. The testimony of Hackett (which is the only evidence adduced by General Counsel in support of the proposition) is to the effect that the employees were opposed to working with Sartain not because he had been promoting the Union but because they found Sartain personally obnoxi- ous. With exceptions not applicable here, proof of unlawful motive on the part of the Respondent, or which is attributable to the Respondent, is an essential ingredient of a violation of Section 8(a)(3). There is no evidence direct, circumstantial, or inferential that Hackett bears any animus towards the Union or any other labor organization. The evidence is to the con- trary-that Hackett supports and believes in unionism. Even if we assume, as General Counsel contends, that on June 29 Sartain was temporarily laid off for a period of uncertain duration, and that Sartain was not terminated until July 1 when Hackett acceded to his employees' insistence that they did not want to work with Sartain, there is no proof that the employees' alleged objections to Sartain were related to their opposition to the Union, or to unionism or to Sartain's union activities. The only evidence of the employees' motives (sought to be attributed to Respondent) is through Hackett's testimony and his testimony is that the employees found Sartain personally objectionable long before Sartain began his union activities and that they were further repelled by, and complained to Hackett about , Sartain's lies to them and Sar- tain's discordant endeavors rather than his union activity. The foundation of General Counsel's case is that Respond- ent had no sufficient reason for laying off Sartain on June 29. However, that at most is a peripheral issue. The Respondent does not have the burden of proving that Sartain was dis- charged for cause. The Act does not prohibit capricious, arbitrary, or unfair discharges. A violation of Section 8(a)(3) turns on proof of motive, i.e., whether the discharge was "to encourage or discourage membership in any labor organiza- tion" and General Counsel has the burden of proving the existence of such unlawful motive. The General Counsel has not met his burden of proof in this case. CONCLUSIONS OF LAW Respondent has not violated Section 8(a)(1) and (3) of the Act as alleged in the complaint. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended. ORDER The complaint is dismissed in its entirety.