S. S. Kresge Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD S. S. Kresge Company and Truck Drivers and Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 17-CA-7427 January 24, 1978 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On June 16, 1977, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge: Pur- suant to notice, a hearing with respect to this matter was held before me in Lawrence, Kansas, on March 22, 1977. The charge was filed on December 9, 1976,' by Truck Drivers and Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union). The complaint, issued January 26, 1977, alleges violations by S. S. Kresge Company (herein called Respon- dent) of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). Respon- dent's answer, duly filed, denies the commission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, I All dates or time periods hereinafter are within 1976, unless stated to be otherwise. 2 The Charging Party's posthearing motion to dismiss Respondent's brief for untimeliness is hereby denied, as said brief was timely received on the 234 NLRB No. 72 briefs have been received from the General Counsel, and from both Respondent's counsel and counsel for the Charging Party.2 Upon the entire record, and based upon my observation of the witnesses and consideration of the briefs submitted, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a corporation engaged in the retail merchandising business and maintains a warehouse facility located in Lawrence, Kansas (the facility involved herein). In the course and conduct of its business operations at its Lawrence, Kansas, warehouse, Respondent annually pur- chases in excess of $50,000 worth of goods and materials directly from suppliers located outside the State of Kansas. In the course and conduct of its total business operations, Respondent receives gross annual revenues in excess of $500,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II1. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The principal issue raised by the pleadings is whether on or about November 22 Respondent discharged employee Charles Transue because of his activity, and the activity of other employees, on behalf of the Union. B. The Facts 1. Background Respondent, as a part of its multistate retail sales operations, maintains and operates a large warehouse in Lawrence, Kansas, called the Lawrence distribution center, at which facility Respondent currently employs approxi- mately 379 warehouse employees. During the winter of 1975, the Union commenced an organizational campaign among Respondent's warehouse employees. Upon the filing of a representation petition the Board conducted an election among Respondent's employ- ees on April 29. On October 18, following the investigation and dismissal of election objections filed by Respondent, the Union was certified as the collective-bargaining repre- sentative of Respondent's employees in a unit apparently consisting of all warehouse and maintenance employees with the customary exclusions.3 date determined for the filing of briefs; namely, April 26, 1977. 3 Both prior to and after the election Respondent committed various violations of Sec. 8(aXI) and (3) of the Act, as recently found by the Board in S. S. Kresge Company, 229 NLRB 10 (1977). 402 S. S. KRESGE COMPANY 2. Transue's discharge Charles Transue began working for Respondent on November 7, 1972. At the time of his discharge he was employed as an order filler in the repack department. He was considered to be one of the most capable and reliable employees in Respondent's employ and maintained an excellent employment record throughout his 4 years of service with Respondent. About I week prior to the April 29 representation election, and immediately following a group meeting conducted by Respondent for the purpose of attempting to dissuade employees from voting for the Union in the forthcoming election, Supervisor Gary Speer asked Tran- sue what he thought about the Union.4 Transue replied that he thought the Union would be a pretty good thing to have and that he did not understand why the Company was so opposed to it. Speer replied, "Neither do I." Prior to the election, K. L. Dunkle, Respondent's vice president in charge of warehousing, who had apparently been circulating among the employees and engaging them in individual conversations regarding the election, also spoke to Transue about the matter. Transue happened to state that he would soon be getting married, and men- tioned the high cost of living. Dunkle asked Transue if his pet peeve was money, and Transue replied, "Yes, I think we should make it a matter of negotiations. I think if the Union got in, it would help us increase our wages." Dunkle replied that he believed Respondent's wage schedule was very fair and competitive. On November 22, Transue clocked out for lunch at 12:45 p.m. and left Respondent's premises, an allowable and customary procedure for employees on the day shift. Transue had felt ill that morning but had intended to complete his shift after lunch. However, becoming increas- ingly ill during his lunch break, he proceeded to drive home, a 30-mile trip, rather than return to the warehouse. Upon arriving home, even though he contemplated that he might "receive a scolding" for not calling in and would possibly be cautioned that he should phone the next time, Transue failed to notify Respondent that he would be absent from work that afternoon. Bob Coffelt, manager of the repack department, was advised at or about 1:25 p.m. that day by one of Coffelt's assistants, also a supervisor, that Transue's "wheeler" or cart used for filling orders had been found but that Transue could not be located.5 Coffelt instructed the assistant to 4 There is no evidence that Transue testified in the pnor unfair labor practice proceeding. s Transue was supposed to return from lunch about 1:20 p.m., within 5 minutes after the buzzer sounds. 6 Guthrie admits, in effect, posing such a question to Coffelt. Guthrie's testimony in this regard is quite puzzling as he further testified that he was not then aware that an employee could be or ever had been discharged for leaving work during the lunch period and fading to return or call in. Questioned repeatedly about this, Guthrie testified that he had taken enough time off, and therefore had become familiar enough with the unwritten call-in rule, to understand that calling in under such circum- stances was expected by Respondent, and that failure to adhere to the rule could possibly result in discharge. He further testified that he posed the question to Coffelt regarding the possibility of Transue's discharge "because the way they change the rules so often you never know what is going to happen." I An employee is customarily required to obtain a pass from his or her check the restroom and other areas including the guard cubicle where the timecards are kept. Coffelt also asked other employees on the floor whether they knew the whereabouts of Transue. Coffelt then advised the person- nel manager, James Dickey, of Transue's absence, a customary procedure upon discovering the unauthorized absence of an employee. According to Coffelt, he asked Dickey what would happen to Transue for walking off the job and inquired whether this would constitute grounds for Transue's termination. Dickey said that employees had always been terminated for this rule infraction, and advised Coffelt of several employees who had been so terminated, including a recent termination which occurred the previous month in the shipping department. Coffelt admits that he carefully questioned Dickey about the matter because Coffelt had never had occasion to discharge an employee for such a rule infraction and he was apparently of the opinion that the automatic discharge of Transue was not warranted under the circumstances. Coffelt testified that, either prior or subsequent to contacting Dickey, the record being unclear on this point, he sought out Transue's friend and coworker, David Guthrie, and asked Guthrie if he knew why Transue had not returned from lunch. Guthrie said, according to Coffelt, that Transue had left the warehouse, that he seemed worried or bothered about something, and that Guthrie could not understand why Transue had not informed him of his intentions. Apparently, during this same conversation Guthrie asked, "If Charlie [Transuel doesn't come back, is he going to be terminated," to which question Coffelt replied that he would have to check with "personnel." s Coffelt then said he wished Transue would have requested a pass ? so that he could have been excused from work.8 The next morning, November 23, Transue informed the office that he would not be at work because of illness. That afternoon Guthrie, who had learned from Coffelt that Transue was, in fact, going to be discharged, phoned Transue and told him that Respondent had determined to discharge Transue because he had left the warehouse the day before and had failed to notify Respondent that he would not be returning to work. Transue immediately attempted to phone Coffelt at the warehouse, and, being informed that Coffelt had gone home for the day, then reached Coffelt at his home. Transue stated to Coffelt that he understood he had been discharged. Coffelt confirmed this, expressing his regrets supervisor upon leaving the premises during the shift. However, an exception to this rule is that upon leaving the premises for the 30-minute lunch break such a pass is not required. and the employee is expected to return to work after the lunch break or call in and explain the reason for his failure to return to work. s Guthrie's testimony regarding this conversation is quite different. According to Guthrie, CoffIlt stated that the worst that could happen to Transue for failing to call in would be his receiving a written reprimand, and that if Coffelt had known that Transue had not intended to return to work that afternoon or was not going to call in, Coffelt would have written out a pass and thereby covered for him. Coffelt added, according to Guthrie, that "the cat was out of the bag" as Transue's absence had already been reported to the front office. and therefore Coffelt could not issue the pass which would operate as an excuse for Transue's absence. Coffelt specifically denies making these comments to Guthrie. As a result of my findings herein, it appears unnecessary to make credibility resolutions in this regard. 403 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and explaining, according to the testimony of Transue, that management had on several occasions phoned Respon- dent's headquarters in Troy, Michigan, to discuss the situation, and that Respondent's local management had been instructed to discharge Transue for leaving work in the middle of the day without informing his supervisor, a rule violation which, according to officials at Respondent's Troy, Michigan, headquarters, warranted automatic dis- missal. Coffelt informed Transue that a number of employ- ees were very upset over the matter and that several employees had voiced their feelings about the matter to R. C. Fisher, the plant manager. He further said, according to Transue, that Respondent "would have to follow company policy pretty closely now because of the union thing and he wished this had happened at some other time." Coffelt then asked Transue to come to the warehouse the next morning and speak with him and, if he desired, with Fisher. 9 The next morning, November 24, Transue, having chosen not to meet with Fisher, met with Coffelt and James Dickey, Respondent's personnel manager, in Dickey's office. Coffelt again expressed his regret over the situation, reiterating that many employees had become very upset over Transue's discharge and that the matter had been discussed with Respondent's headquarters. Transue ex- plained that he had been ill when he went home on November 22, and stated that he was sorry to have inconvenienced Respondent by not calling in. He further stated that he had not realized that he was required to call in under the circumstances, particularly because the call-in rule was not included in the employees' handbook. Coffelt replied, according to Transue, that the rule probably should have been set forth in the handbook, and that Respondent had a new handbook which had not yet been released because Respondent's headquarters was con- cerned about lawsuits. Following this meeting Transue had a separate conversa- tion with Coffelt. Transue reiterated that the handbook should have explained that failing to call in under such circumstances constituted grounds for discharge, and, as Transue was about to leave the premises, Coffelt suggested that Transue might seek assistance from the Union. 3. Employees reaction to the discharge of Transue Upon being advised of Transue's discharge, employee Guthrie immediately asked to speak with Fisher, the plant manager. Such a meeting was arranged and Guthrie expressed his feeling to Fisher that Transue's discharge was s Coffelt's version of the conversation is somewhat different. Thus, Coffelt testified that he informed Transue that he had been discharged and that his coworkers were upset about the situation. Coffelt further stated that most personnel matters were checked with Troy because, as a result of the union activity at the Lawrence distribution center, Troy was being kept informed of everything that was occurring locally. Coffelt advised Transue that there had been prior terminations for walking off the job, that this was company policy, and that there could be no exceptions to the rule "because we are in a [union] negotiation period where there cannot be any changes as far as adding new policy or taking away policy." Apparently at this time, the record being somewhat unclear, Coffelt asked why Transue had failed to call in and report that he would not be returning to work the preceeding afternoon. Transue replied, according to Coffelt, that he had felt ill and believed that although he might get a writeup he did not contemplate that he might be terminated. Under the circumstances, it also appears unnecessary to resolve this conflict in testimony. unfair because employees were not given prior written notification of the rule, and that Transue was therefore being used as an example by Respondent apparently for the purpose of establishing a more stringent disciplinary response to an infraction of the rule. Fisher, agreeing that this particular rule was not embodied in the employees' handbook, replied that while rules had been disregarded in the past, Respondent had to start tightening up and enforcing previously established rules. Guthrie reiterated that the particular rule in question was not contained in the handbook, and added that employees had gotten away with similar rule infractions before. Fisher agreed that under the leadership of the former plant manager, R. D. Jacobs, the rule may not have been strictly enforced and department managers or supervisors may have covered for employees under similar circumstances, but Fisher indicat- ed that such practices would not be permitted while he was plant manager.'0 Employee Michael Blevens had a conversation with Coffelt regarding the matter and asked why Transue was fired. Coffelt replied that Transue was fired for walking off the job. Blevens said he couldn't quite agree that Transue's conduct could be reasonably characterized as "walking off the job," and Coffelt invited Blevens to speak with Fisher regarding the matter if he wanted to. Later that day, Blevens and another employee, Jim Ralston, did speak with Fisher, Coffelt again being present during the conver- sation. Blevens asked Fisher why Transue was fired and Fisher replied, "because he walked off the job." Blevens took issue with this, stating that Transue really didn't walk off the job, but rather merely went home at his lunch break without a pass and that such conduct could not "technical- ly" be deemed to constitute walking off the job. Fisher replied that perhaps as a technical matter Transue's conduct did not constitute walking off the job, but, referring to a rule sheet, Fisher said that the rules had been basically in effect since the plant opened, and that each employee had been required to read the rules upon applying for employment. Fisher then suggested that Transue had violated company policy by "not honoring company time." 1 Blevens asked Fisher how the employees were supposed to know what the rules were if they were not written down in the handbook, and Fisher replied that any employee should know that if he walks off the job he is going to be fired for it.12 Blevens said that unless employ- ees happen to hear of it through the grapevine, there is no way of knowing what the rules are. He stated that since he had been employed by Respondent he had never heard of 10 Fisher did not testify in this proceeding. Coffelt, who was present during the conversation, did not deny Guthrie's testimony regarding Fisher's remarks during the conversation. In S. S. Kresge Company, supra at I , it is stated that Jacobs was plant manager prior to on or about April 6,; and at 16 it is stated that Fisher became Respondent's temporary manager on April 14, and became permanent manager on April 26. 1i Blevens testified that he did not respond to Fisher's latter statement because Bleven's agreed that Transue perhaps "did not honor company time." While the record is unclear, both Fisher and Blevens may have been referring to the handbook provision entitled "Punctuality/Time Cards," which states, inter alia "We operate on a carefully planned schedule. To insure efficiency it is your responsibility to observe established working hours." 12 Blevens admitted that he would never "have walked off the job without notifying management." 404 S. S. KRESGE COMPANY anybody being fired for not calling in upon not returning from lunch, and that many repack employees whom he talked to had never heard of it either. Emphasizing this point, Blevens said he could probably get a petition signed by 100 or more employees who would attest to having never heard of such a rule, and said that several repack employees who had done the same thing had not been discharged. Fisher replied that to his knowledge the rule had not been violated with impunity since he had become plant manager, that employees had, in fact, been fired for violating the rule, and that those employees who may have violated the rule but had not been discharged should merely consider themselves lucky. Ralston said he, too, had violated the rule, and Fisher replied, "Nobody is going back and checking on that now." During the conversation Fisher was holding the employ- ee handbook and, in addition, the aforementioned rule sheet. He said that Respondent was not using the hand- book any more. He acknowledged that the handbook rules had been in effect when he was first sent to the Lawrence distribution center but implied that the rules on the rule sheet superseded the handbook rules. Blevens asked if Fisher would give him the new rules and Fisher made no comment either way. 13 On November 24, employee Leon Hattabaugh, along with approximately four other employees, spoke with Coffelt about the matter. Hattabaugh asked why Transue was discharged, and Coffelt replied that Transue had gone to lunch and had not returned or called in. Hattabaugh volunteered that he had done the same thing on several occasions without any adverse consequences. Coffelt re- plied that he was not aware of such occurrences and Hattabaugh suggested that Coffelt check the records, which Coffelt agreed to do. Later, after checking the records, Coffelt told Hattabaugh that the records showed Hattabaugh called in each time he left the premises without a pass.14 13 This particular matter, namely the publication of new work rules, was also mentioned by Coffelt to Transue during his aforementioned conversa- tion with Transue the morning of November 24. The record contains no further reference to the new rules and neither the General Counsel nor counsel for the Charging Party has advanced the contention that the matter has some significance with regard to the instant proceeding. The record does show that, on November 16, Respondent's legal department in Troy, Michigan, furnished the Union with requested collective-bargaining infor- mation, and that, on December 14, the Union submitted counterproposals to Respondent, at least one negotiating session having taken place in Lawrence, Kansas, prior to that time. By letter dated January 3, 1977, the Union was advised by Respondent's legal department that the employee handbook "covers all of the written policies as well as rules ... at the Lawrence Distribution Center" other than material previously provided the Union, which material pertains to various types of insurance coverage for employees. 14 Hattabaugh acknowledged that the instances to which he was referring had occurred several years previously under a different repack manager, Bob Wooten, and that there were no such occurrences while under Coffelt's supervision. Hattabaugh further testified that Wooten had instructed him to thereafter follow company procedure by calling in. is The bizarre nature of this rule is demonstrated by an occurrence during the summer when employees Leon Hattabaugh and Gary Prager left the premises for lunch and, the weather being conducive to activities other than work, decided to take the remainder of the afternoon off. About 4 4. The call-in rule and its prior enforcement Respondent's personnel manager, James Dickey, ex- plained the origins and parameters of the rule which Transue had violated, admitting that the rule was not contained in the employees' handbook or even formally announced to managers or supervisors. According to Dickey, the rule was instituted in August 1973 pursuant to a determination of the then plant manager that walking off the job without obtaining a pass from a supervisor or without otherwise notifying the supervisor warranted auto- matic dismissal unless the employee notified Respondent of his absence prior to the end of the shift.15 The rationale for the rule is exceedingly vague. Dickey initially testified that the purpose of requiring the call-in notice was to provide sufficient notification to Respondent so that a replacement or substitute could be obtained to perform the work. Yet, the following question was posed by counsel for the General Counsel, and answered by Dickey: Q. In terms of the operation of the plant, what is the difference between an employee who leaves work on his lunch hour and does not return and does not call, and an employee who leaves work on a lunch hour and calls in five minutes prior to the end of the shift. A. There would be no difference. The rule was further clarified by Dickey as follows: Q. (By Judge Wacknov) Now, in enforcing this rule . . . are mitigating circumstances taken into account, for example, the type of employee that the individual happens to be and his attendance record with the company, the reason for walking off the job without notice or without calling in, his length of service, whether or not he has had previous reprimands, this sort of thing, are these taken into account prior to making a decision as to whether those employees should be discharged for walking off the job? A. No, sir, they are not.16 hours later, 5 minutes prior to the end of the shift, they phoned the plant not for the specific purpose of calling in, but rather because they wanted to ask some friends to join them for a drink after work. Their supervisor, Coffelt, happened to answer the phone and inquired why they were absent from work. They replied that they were taking an extended lunch period and simply did not feel like coming back to work that afternoon. Coffelt advised them that employees are required to phone Respondent when they leave work during the lunch break and do not intend to return, and added that he would just consider the call to be the requisite call-in notification. They were not disciplined in any manner for their conduct, and the matter was never discussed with them by management. Dickey emphasized in his testimony that, indeed, such was a correct application of the rule. 16 The rule should be compared with the following rule included in the employees' handbook: A 7TENDA NCE If an employee finds that he or she cannot be on the job at the regular time, the day shift employee should report the situation to the Personnel Office before 9:30 a.m. daily or it will be considered a no call-in for the day. It is the responsibility of each employee to see that this information is given to the operator by phoning 842-9600 (Night shift personnel should call before 6:30 p.m.) Ifan employee is absent for three days without calling in, employment will be terminated Excessive (Continued) 405 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dickey acknowledged that Respondent had made a diligent search of its files for purposes of this proceeding in an effort to find any and all termination notices from the date of hearing back to August 1973, when the rule was allegedly first instituted, as evidence supporting Respon- dent's contention that the rule has, in fact, been similarly enforced. Each of these termination notices, together with supporting timecards, was received into evidence as a "business records" exception to the hearsay rule, even though the witness through whom the documents were introduced, Dickey, had no personal knowledge of the specific circumstances surrounding the discharge of the various employees, with the exceptions of the discharge of Transue and another employee, Dennis Seward. While the termination notices primarily contain conclusionary lan- guage and do not therefore disclose with any specificity the precise nature of the rule infraction or reason for the discharge, nevertheless Dickey testified that the termina- tions reflected by the notices were effectuated under circumstances similar or identical to those surrounding Transue's discharge. The records show that, since the inception of the automatic termination rule, eight employees were terminat- ed for walking off the job17 on the following dates: August 3, 1973; May 6 and August 29, 1974; April 22, 1975; and April 5, July 14, October 7, and November 23, 1976 (Transue's discharge). Dickey testified that he alone made the decision to terminate Transue. Upon discovering that Transue had left the premises for lunch and had not thereafter returned to work or called in, Dickey then reported to Plant Manager Fisher that, pursuant to customary procedure, Transue would have to be terminated. Upon making this decision, and apparently after obtaining Fisher's approval, Dickey phoned Respondent's headquarters and confirmed the matter with an individual in charge of personnel and management training. Dickey testified that since the advent of the Union he had been instructed to consult with Respondent's home office in this manner as a standard procedure, and that upon advising the main office of the situation and the surrounding circumstances, the suggested personnel action will customarily be allowed by headquar- ters if consistent with past practice. Analysis and Conclusions General Counsel and counsel for the Charging Party maintain in their briefs that Respondent seized upon a pretext to effectuate the discharge of Transue in an effort to rid itself of one known union adherent; and further, that the unjustified discharge of such an exemplary employee as Transue was designed to serve as a warning to all other employees that similar consequences may befall them as a result of having supported the Union. absenteeism is also grounds for termination. (Excessive absenteeism is considered any time over 80 hours in a calendar year in addition to the regular 40 hours personal/sick time period.) [Emphasis supplied.] 17 Of the eight employees so terminated, the records show that one employee was a temporary employee, two employees had worked for Respondent less than a month, and two employees were discharged under somewhat different circumstances than Transue. In support of this argument both the General Counsel and counsel for the Charging Party point out the incongru- ous nature of the unwritten automatic termination rule pursuant to which Transue was discharged when compared with the written attendance rule set forth above, which rule expressly allows 3 consecutive days of unexcused absences prior to termination. Further, it is argued that the utter irrationality of the automatic termination rule is exempli- fied by Dickey's feeble attempt to justify the rule as being necessary to promote efficiency and productivity. Thus, it is obvious that an employee who calls in 5 minutes prior to the end of the shift to report his absence, an allowable procedure according to Dickey, is as unproductive and inefficient and has caused Respondent the same work- related problems as an employee who fails to call in at all. Yet, the former employee receives total absolution while the latter employee is automatically discharged regardless of his past work record or any mitigating circumstances. In agreement with the above argument of counsel, it does indeed appear that there is precious little justification for the automatic termination rule, particularly when applied to an admittedly excellent employee such as Transue. However, the burden is upon the General Counsel to prove by the requisite preponderance of evidence that Transue's discharge was occasioned by his union activity and/or the union activity of other employees, as alleged. This burden has not been met. There is no showing in the record that Transue engaged in any union activity other than perhaps being among the majority of employees who cast votes for the Union in the representation election.' s Thus, the record affirmatively shows that Transue did not sign a union authorization card or solicit signatures on authorization cards; or even become a member of the Union; or, so far as the record shows, engage in any other form of union activity. If Transue was chosen as a vehicle for expressing Respondent's antiunion sentiments to other employees, he was a poor choice indeed, as the other employees would reasonably draw no such invidious conclusion from Transue's discharge. Further, under all the circumstances, including the large employee complement involved herein, the 8-month intervening period between Transue's expression of his union sympathies and his alleged unlawful discharge, the total absence of any other form of union activity on the part of Transue, and the fact that Respondent is not alleged to have committed other violations of the Act at any time reasonably close to the date of Transue's discharge, which matters could be used to shed light upon the discharge, I find that the evidence herein is insufficient to support the allegation of the complaint. It appears that Respondent, upon the advent of the Union, commenced to more stringently enforce its previ- ously established call-in rule. Thus, the record shows that of a total of eight employees who were discharged for walking off the job since the rule was instituted in August i8 Transue's conversations with Supervisor Spear and Vice President Dunkle are detailed above. Both conversations occurred prior to the election, and it may reasonably be assumed that, as a result of the conversation with Dunkle, Respondent became aware that Transue intend- ed to vote for the Union in the then forthcoming election. Coffelt specifically denied that he was aware of Transue's sympathy toward or support of the Union. 406 S. S. KRESGE COMPANY 1973, four of the said discharges, including that of Transue, occurred after the advent of the Union, during which time Respondent's headquarters in Troy, Michigan, was closely monitoring Respondent's Lawrence, Kansas, warehouse operations. Further, and concomitantly, Respondent ac- quired a new warehouse manager, Fisher, who acknowl- edged to employees that the rule had been ignored or overlooked in the past but that such was no longer the case under his management.' However, there is no complaint allegation and insufficient record evidence that more stringent enforcement of the rule was discriminatorily motivated. And even assuming, arguendo, an unlawful motive it would appear that any complaint allegation based on this theory would be time-barred by Section 10(b) of the Act, the call-in rule being valid on its face and there being no showing that Transue's discharge was occasioned by any factor other than enforcement by automatic discharge of the previously established rule, and both the rule and its enforcement by discharge apparently having been in effect more than 6 months prior to the filing of the charge herein.20 On the basis of the foregoing, I find that Transue was not discharged in violation of Section 8(aX3) and (1) of the 19 The fact that the enforcement of the call-in rule by automatic discharge, as explained above by Dickey, appears to be so obviously incongruous and inconsistent with Respondent's 3-day absentee rule, above, may provide an explanation for the call-in rule being overlooked by management in the past. 20 Wald Manufacmrng Company, 176 NLRB 839, 841 (1969), enfd. 426 F.2d 1328 (C.A. 6, 1970). Act, as alleged, and therefore I shall dismiss the complaint herein. CONCLUSIONS OF LAW 1. S. S. Kresge Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers and Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of the Act. 3. S. S. Kresge Company has not violated Section 8(aX3) and (1) of the Act as alleged. Accordingly, upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 21 The complaint is dismissed in its entirety. 21 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 407