CPE Industries, Ltd.

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CPE Industries, Ltd. and Arthur Merkle. Case 29-CA-2824 March 29, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On November 29, 1973, Administrative Law Judge Harry H. Kuskin issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and a brief in opposition to Respondent's exceptions; and Respondent filed exceptions, a brief in support thereof and of the conclusion of law dismissing the complaint, and an answering brief. Pursuant to the provisions) of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 briefs 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. I As there is no basis in the record for concluding there was a causal connection between Merkle's discharge and his desire for union member- ship, we need not pass on the Administrative Law Judge's conclusion that Merkle's activity was not protected by the Act DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Administrative Law Judge: This case was heard at Brooklyn, New York, on July 19 and 20, 1972. A complaint issued herein on May 31, 1972, based on a charge filed on April 4, 1972, by Arthur Merkle, an individual, against CPE Industries, Ltd., herein called Respondent. It alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging and thereafter failing and refusing to reinstate Merkle, its employee, because he desired to join and assist Local 638, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada, AFL-CIO, herein called the Union, and engaged in other concerted activity for the purpose of collective Referred to as Kold-Flow Refrigeration by the General Counsel in his brief Neither it nor Electro-Flo Installations, Inc , is named as a respondent bargaining and mutual aid and protection . In its answer, Respondent denies that it has violated the Act as alleged herein. Upon the entire record, including my observation of the witnesses, including their demeanor while on the witness stand, and after due consideration of the briefs of the General Counsel and of Respondent , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, and Respondent admits, that Respondent is a New York corporation with its principal office and place of business in Farmingdale, New York, where it is engaged in the manufacture, sale, and distribution of refrigeration equipment and related prod- ucts; that during the past year, which is a representative period, it purchased and caused to be transported and delivered to its Farmingdale plant refrigeration parts and equipment, and other goods and materials, of which in excess of $50,000 worth came directly from outside the State of New York. I find, upon all the foregoing, that Respondent is an employer as defined in Section 2(2) of the Act, and is engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, and Respondent further admits, and I find, that Local 638, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Some Background Facts Respondent manufactures refrigeration and air condi- tioning units at its only plant in Farmingdale, New York. Among Respondent's officers are George Camas and Leonard Martin, the assistant secretary and vice president, respectively So far as appears they and one Richard Rauch, another officer, whose title is not disclosed by the record, are the owners of Respondent. Camas appears to be in overall charge of the Farmingdale facility. During the period from October through part of December 1971, Max Mermelstein was supervisor of the facility. He was replaced for about a month or so by an individual not named in the record. Since February 1972, and at least until the time of Merkle's discharge, Martin served in such supervisory capacity. Respondent operates with a small complement of employees and as extra help is needed such help is obtained from two interconnecting companies, namely Electro-Flo Installations, Inc, and Cold Flow Refrigera- tion.' Thus, until the time that Merkle, the alleged discriminatee, was hired by Respondent to do the work of herein 202 NLRB No. 116 CPE INDUSTRIES, LTD 783 a refrigeration mechanic, namely, soldering, brazing, flaring, and joining the tubing to the other components of the condensing units, such work was being done for Respondent by an employee or employees of Cold Flow whose regular duties for that company consisted of working as field employees in the installation of refrigera- tion equipment. Apparently, during Merkle's tenure of employment, Respondent obtained such help from Cold Flow only when it had a "heavy workload." With specific reference to the size of Respondent's complement at all times material herein, Mermelstein testified that the entire production force of Respondent during his tenure consist- ed, once Merkle was hired, of Harvey La Flamme,2 Gus Taftduterer, and Merkle. And so far as appears, just before Merkle was discharged, the entire production force consisted of Martin, La Flamme, and Merkle 3 Respondent's employees are unrepresented by any labor organization. And, although the complaint alleges, as noted above, that Respondent discharged Merkle because he desired to join and assist the Union, the record shows, and I find, that there was no organizational activity in progress or pending at any time material herein in behalf of the Union or its sister local, 638B, which apparently is the local to which refrigeration mechanics belong. It is also clear from the record, and I find further, that Merkle was not a member of the Union or this sister local when hired, and although, as will appear in more detail herein, Merkle testified, in substance, that Camas promised to put him into the Union if he proved satisfactory during a trial period; and, further, that joining the Union was very important to him, there is further testimony by him that he has never, during his tenure of employment, been in touch with the Union or its sister local concerning gaining membership therein B. Merkle's Employment History with Respondent Upon Mermelstem's recommendation of Merkle to him for employment, Camas interviewed Merkle, in the presence of Mermelstefn, early in November 1971. After inquiring as to Merkle's background andjob qualifications, and after getting Merkle to fill out an application, which was returned to him by Merkle within a half hour, Camas hired Merkle at that time as a refrigeration mechanic on a trial basis for 30 days, with the further understanding that if the relationship proved satisfactory to both of them Merkle would be retained. There is further testimony by Merkle that Camas said that, if he were retained, "he (Camas) would put [him] into Local 638," the Union herein. Mermelstem testified along similar lines; however, according to him, Camas said that Merkle "would be put into the union," if retained, making reference only to the refrigeration union and not any union local by number. In contrast to the above, Camas denied that there was any union discussion during this employment interview.4 I am satisfied that Merkle and Mermelstem, whose testimony was in large part mutually corroborative, were more reliable witnesses than Camas. Accordingly, I infer, and find, that Camas made it clear that he "would put" Merkle into the craft union which had jurisdiction over refrigera- tion mechanics in that geographical area and that Merkle reasonably understood Camas to be referring to the Union herein, i.e., Local 638, or to its sister local, Local 638B. It is apparent from the fact that Merkle continued in this employment for a period of more than 4 months that he proved to be a satisfactory employee during his trial period. And it is also apparent from the record that Respondent did nothing with respect to putting Merkle into the Union or Local 638B, despite Merkle's efforts, at the end of his trial period and thereafter, to have Respondent do something in that regard. Thus, Merkle testified to the following efforts on his part: .(1) On December 15 or 16, he had a conversation with Mermel- stein in the latter's office and inquired as to when he (Merkle) was going to get into the Union and get hospitalization benefits, to which Mermelstem replied that he would speak to Camas about the matter.5 (2) Thereafter, he checked with Mermelstein and was told that Camas said that "he would take care of it."s (3) On January 1, 1972,7 a day on which he worked for 5 hours on an overtime basis, he met Camas on the parking lot of the Farmingdale plant and inquired from him "about getting into the Union"; to this, Camas replied that he would have to wait until the Richmond Hill plants which was then closed, would resume operations with its full complement and would be "in the swing." (4) At the end of February, he told Martin in the latter's office in the Farmingdale plant that his wife was very sick, and that he had to get into the Union and get the hospitalization because the doctor treating her was going to hospitalize her Martin's response was that he had nothing to do with getting into the Union or hiring, and that he would talk to Camas. (5) On the Monday or Tuesday following the above conversation with Martin, he talked to Martin again, asking whether Martin had spoken to Camas. Martin reported that he had done so, and that Camas "would look into it." In addition, Martin advised him that he (Martin) had asked the office manager to see about getting the papers for the hospitalization so that his wife would also have such coverage.9 (6) On March 6, 2 The record shows that La Flamme was a supervisor and had such authority over Merkle at times material herein 3 In this connection , I find rather strange Camas' and Martin's claimed lack of knowledge as to the names of Respondent's production employees, let alone their inability to fix the precise size of the production complement 4 Camas did not testify with respect to the content of the interview 5 Mermelstem corroborated Merkle's above testimony 6 While Camas denied that Mermelstein ever spoke to him about a union in regard to Merkle, I am persuaded, in the light of Merkle's above testimony and the further testimony of Mermelstein that he did see Camas after the inquiry by Merkle and Camas said that he would take care of the matter and let him (Mermelstem) know, here too, the testimony of Merkle and Mermelstefn are more reliable than that of Camas, and I credit them rather than Camas I All the dates hereinafter are in 1972, unless otherwise indicated 8 The record shows that Cold Flow Refrigeration and Electro-Flo Installations, Inc , were headquartered there and that Camas had his offices there 9 It would appear, and I find, that employees of Respondent were provided with hospitalization benefits for themselves by virtue of their employment, and that additional coverage for a spouse could be obtained by any employee by making application therefor and paying for the extra coverage Although Martin denied that he ever discussed with Merkle the question of joining a union, he left undenied Merkle's testimony about the discussion between them as to the illness of Merkle's wife and Merkle's need to get for (Continued) 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Merkle left the following message, addressed to Camas, with Judith Cohen, Respondent's office manager: "Would like an appointment at your earliest convenience, to discuss raise to Refrigeration Machenic (sic) scale, as per talk in November, I enjoy working the factory as opposed to field work and would like to stay here as a permanent member of C.P.E." About 2 1/2 weeks later, i.e., on Friday, March 24, he heard from La Flamme, the plant foreman, that Martin had called to say that Camas would see him (Merkle) at the Richmond Hill plant about the above message. Thereupon, he went to that plant, arriving at about 4:30 p.m., and spoke with Camas, in the presence of Rauch, who was at the other end of the office from both of them. After some general conversation, Camas asked him why he had refused to sign, at the request of management, a statement saying that he had seen Mermelstein place company tools into his station wagon and, in effect, steal them. His reply was that he had never seen the document which Camas was showing him. To this, Camas replied, "Well, you see it now, are you going to sign it?" When Merkle refused to sign the statement, Camas talked about a court proceeding at which Merkle would have to take the witness stand and tell the truth. Merkle rejoined with the remark that he would go to court then and tell the truth, adding that the content of the statement is not true. After some additional conversation, during which Camas' effort to get Merkle to sign proved abortive, Merkle inquired about his "memo" to Camas of March 6. Whereupon, the discussion turned to the memo. According to Merkle, two topics were discussed, namely, whether he would get a raise to the wage scale of refrigeration mechanic, and whether he would be able to get into the Union. As to the former, Camas said that Respondent gives raises only in June and January. And as to the latter, the following occurred: He indicated to Camas that he "was having problems, [he] needed to get into the Union, [he] needed all [his benefits]"; and he also reminded Camas that "you told me that by the first of the year I would be able to go into the Union." Camas answered, saying that, "I will have to look at the contracts to see what I can do." To this, he replied that, unless he got into the Union, "[he is] going to hand in [his] notice because [he] can't go on like this." The conversation ended with Camas saying that he "would look into the contract" and that he (Merkle) would hear from Camas "within a week one way or the other." io her the hospitalization protection which would be available if he were a member of the Union Accordingly, in view of the nature of Martin's denial and his failure to give his version of these two episodes, which episodes, I am satisfied, did occur, I find that Martin was less than forthright in this respect and that Merkle gave the more reliable testimony, Accordingly, I find that these episodes occurred in the manner testified to by Merkle 10 Camas did not testify with respect to the above episode I credit Merkle's undenied testimony ii Office Manager Judith Cohen testified, on direct, that she overheard the conversation between La Flamme and Merkle and that, upon being told of his discharge by La Flamme, Merkle became "very, very angry and upset" and threatened, in effect , to see to it that Martin was either killed, run over by an automobile, or beaten up However, she testified further, during cross-examination , that all she knew about Merkie's discharge was that La Flamme discharged Merkle at a time when she was "out in the shop," but that she did not hear the conversation between the two of them Noteworthy, too, in this regard, is her acknowledgement, during such cross- C. The Notification to Merkle That He Was Discharged Exactly I week after the aforesaid conversation between Merkle and Camas at the Richmond Hill office, Merkle was discharged. According to Merkle's uncontradicted testimony, which I credit, Thursday of that week was payday. Prior thereto, he had inquired from La Flamme whether he (La Flamme) had heard anything from Camas. La Flamme said that he had not heard anything, and that, in all probability, he (Merkle) would find a note from Camas in his pay envelope As he did not find such a note in his pay envelope that Thursday, he so informed La Flamme, and La Flamme answered that he (Merkle) would probably hear something by the next day, Friday. This proved to be so, as he did hear around 2 p.m. from La Flamme that "a call" had been received by La Flamme and that he was laid off. When he inquired from La Flamme as to the reason for the layoff, La Flamme answered that he "had no idea." 11 D. The Aftermath of Merkle's Discharge Merkle took the early leave offered by La Flamme and proceeded to Richmond Hill on the afternoon of his discharge However, his efforts to see, first, Camas and, then, Martin, in order to learn the reason for his discharge proved unavailing, as he was told by Cohen, the office manager, that both of them were "gone for the day." He, thereupon, inquired from Cohen as to whom he could see concerning the reason for his discharge and was referred to one Roy, the accountant. 12 Roy's answer was that he could not furnish him (Merkle) a termination slip because he was unaware of the reason; and that he (Merkle) would have to return on Monday next.13 On that Monday, he tried again to see Camas but was told by the switchboard operator that Camas was very busy and was not available. She added that he should see one Kay, an office employee. He did, thereupon, see Kay and received a termination slip from her.14 Thereafter, he inquired unsuccessfully a second time from the switchboard operator about seeing Camas, being told that Camas was going to be in conference almost all day. Upon leaving, he asked the switchboard operator to make an appointment for him to see Camas on the coming Thursday when he would be in to claim his pay. He returned as he had planned to do, but did not see Camas. In the interim, on April 4, as heretofore found, he filed the charge herein. examination , that she swore in her preheating affidavit to a Board agent that "La Flamme told Merkle (in her presence on the production floor) he believed he (Merkle) was being laid off for lack of work but that, if he (Merkle) didn't really understand why, he should ask management " In the light of the above variances, I find unreliable Cohen's testimony as to what La Flamme told Merkle at the time he discharged Merkle And. I find further that the above-mentioned attribution to Merkle by Cohen of various threats against the life of Martin on the occasion of his being told by La Flamme of his discharge, which Merkle denied . is also unreliable Accordingly, I credit Merkle's version of the conversation that ensued between La Flamme and him when La Flamme advised him of his discharge, and his denial that he made any threats on Martin's life La Flamme did not testify in this proceeding 12 Cohen did not testify concerning the above 13 Roy did not testify in this proceeding 11 Kay did not testify in this proceeding, and the content of the termination slip is not apparent from the record CPE INDUSTRIES, LTD. 785 E. The Reasons Given at the Hearing for Merkle's Discharge Both Martin and Camas gave testimony as to the reasons for Merkle's discharge. Martin testified that the conclusion that Merkle's termination was required was reached by La Flamme and him; that he "recorded that to George Camas, and [that] subsequently [Merkle] was informed that he was no longer required." He testified further, in substance, that La Flamme and he faulted Merkle because of (1) his lateness, (2) his attitude of wanting to do things his own way rather than as directed by supervision, (3) his generally poor work habits, (4) his unauthorized coffee- breaks, and (5) the reports from the field that "workman- ship in which Merkle was involved" was not up to industry standards and was causing trouble and difficulty. Howev- er, Camas' list of reasons also included absences by Merkle more often than was reasonable. I shall now consider the merits of all these reasons. As to Merkle's alleged lateness, Respondent introduced into evidence timecards for the months of January, February, and March, which it claimed were Merkle's and which purported to show that Merkle, whose starting time was 8 a.m., was repeatedly late for work. Thus, these cards show that Merkle was late on January 3, 11, 17, 18, 21, and 28; on February 1, 2, 3, 4, 9, 10, 11, 14, 17, 18, 23, 24, and 29; and on March 1, 2, 7, 8, 9, 10, 13, 14, 15, 20, 21, 23, and 27. The lateness in these instances ranged from 1 minute to 42 minutes; and, of the 32 instances of alleged lateness, 13 showed lateness of less than 10 minutes, 10 showed lateness of between 11 and 15 minutes, 4 showed lateness between 16 and 20 minutes, I showed lateness of 22 minutes, 2 showed lateness of 26 minutes, 1 showed lateness of 29 minutes, and 1 showed that Merkle was 42 minutes late However, the accuracy of these cards is open to question in that (1) the timeclock involved consistently punched a date in July, irrespective of the month and date which were current, and registered p.m. hours instead of a.m. hours, and vice versa, so that the punch-in time for Merkle showed that his 8-hour day spanned 2 days; (2) the actual date of the month was shown in ink, and was written in each day by office personnel of Respondent alongside the time purportedly imprinted by Merkle on his card on that date,t5 (3) with respect to the claimed lateness on January 28, the timecard for that date shows an initial imprint which was erased and may well have been a time in advance of 8 o'clock, and then has imprinted below it a punch-in time of 8 :40, and, in addition, the space alongside where Respondent customarily wrote in ink only the actual date, also shows the time, in ink, to be 8.20, (4) with respect to the claimed lateness on February 24, the timecard for that date shows that the initial imprint on the timecard has been crossed out in ink so that it is not recognizable, and then imprinted below it is a punch-in time of 8:42, and (5) with respect to the claimed lateness on March 10, the timecard for that date shows an initial imprint of 7:56 and a second imprint on top of it of 8:19; and (6) the physical evidence of tampering on the cards in the three respects noted above is unexplained in the record. In all these circumstances, including the admitted deficien- cies in the timeclock's mechanism, the resulting improvisa- tions by Respondent in order to compensate for these deficiencies, and the unexplained tampering with some of the timecards in evidence purporting to pertain to Merkle, and in view of Merkle's denial that these timecards were a true record of his clock-in times during these 3 months,16 I conclude, and find, that the record does not preponderate in favor of a finding that the timecards in evidence are entitled to probative weight. It is contended by Respondent, in effect, that the claimed lateness, along with the other claimed derelictions on the part of Merkle mentioned above, were called to Merkle's attention by management. However, Merkle, when asked twice during cross-examination by counsel for Respondent whether he had any conversation about lateness with any of Respondent's officers or supervisors (Martin being named specifically at one time), denied having had any.17 In support of the foregoing contention, Respondent adduced testimony by both Camas and Martin. Camas testified that near the end of February or early March, he "received considerable conversation from Martin with reference to Merkle being late consistently, taking excessive coffee breaks and not following the instructions basically of his supervisor (La Flamme)." He thereupon told Martin "to work it out and see if he could get the work done a little better," as Respondent was busy at the time and could use Merkle during the busy period. Martin agreed to try to work it out. Martin's testimony, in this regard, is as follows: Either at the end of February or during the first week in March he talked to Merkle about Merkle's lateness, coffeebreaks, and general work habits, and about the field reports he had of failures or leakages on finished products on which Merkle had done work for Respondent. He then told Merkle that he (Merkle) had to "shape up" because neither his work nor his lateness could be tolerated, and Merkle replied that he had personal problems relating to his wife and was "under a load" and "would try to do his best to bring himself back to the good graces of [Respondent]." I find, however, that Camas' and Martin's testimony as to developments after these alleged conversations cast doubt on the reliability of all their testimony relating to their preoccupation with, and steps taken concerning, Merkle's claimed derelictions. Thus, according to Martin, he spoke to La Flamme twice during March, i.e.. during the first week in March and at the end of March; that, on the first occasion, he told La Flamme of his recent conversation with Merkle and that he "was going along with Mr. Merkle's request that he be given so-called second chance . . "; that La Flamme's opinion was that Merkle's "work was not good enough for [Respondent's] operation," but he (Martin) kept Merkle on despite La Flamme's 15 The parties stipulated that the timecards of all of Respondent's employees during the period here involved were as described in (1) and (2) above lb According to Merkle, he had never been as late as many times as shown by the timecards He also testified, without contradiction, that there were times when he spoke to La Flamme and claimed that the timeclock was 20 to 25 minutes fast, and La Flamme's answer was " that he comes in early and reads his newspaper and that he puts [the clock ] ahead, and [not to ] worry about it because this way you beat the traffic going home at night " 17 He was not asked whether he had conversations as to the other claimed derelictions 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommendation ; that, on the second occasion, La Flamme told him that, "although [Merkle's] work had shown improvement initially, he was back again where he was before and that he (La Flamme) still recommended his discharge", and that he (Martin) thereupon reported to Camas, "[his] immediate superior," that La Flamme and he "were of the opinion that [Merkle ] should no longer be in [Respondent's] employ." It is noteworthy, in respect to the above, that Martin made no mention to La Flamme, during the first conversation with him, of having had a prior conversation with Camas about Merkle during which he was told by Camas, as Camas testified, "to work it out and see if he (Martin) could get the work done a little better." Indeed, Martin's testimony was, as found above, that he told La Flamme that he was going along with Merkle's request that he be given a second chance , and not that Camas had instructed him to do so because Respon- dent was then in a busy period. It is also noteworthy that Martin's testimony makes no reference to having had a conversation, in the intervening period between the above two conversations with La Flamme, with Camas concern- ing Merkle's claimed derelictions . In this connection, the testimony by Camas, if believed, undercuts Martin's testimony that it was not until after his (Martin's) conversation with La Flamme the second time that steps were initiated by him with Camas to effect Merkle's discharge. Thus, Camas testified that, on March 16, he had another conversation with Martin about Merkle's work performance, that Martin expressed continued dissatisfac- tion with Merkle's work and indicated that he would like to discharge Merkle; that he then agreed with Martin's recommendation that the discharge should occur at the end of March; and that the reason for picking that termination date was "only to complete the work and see if we could get another man to replace him." And on the separate question of Camas' credibility, it taxes one's credulity to believe, as he testified, that he did not "really know" whether the unsatisfactory work, mentioned by Martin, related to work performed during the approxi- mately 2-week period since his prior conversation with Martin about Merkle or to work performed before Merkle was to be given the chance "to work it out." In further appraising Respondent's claimed preoccupa- tion with Merkle's work habits, I note the following. There is absent any evidence as to the manner in which Merkle demonstrated his alleged attitude of wanting to do things on his own, rather than as directed by supervision. Accordingly, I conclude, and find, that the record fails to sustain Respondent's claim that Merkle had such an attitude. As to the claim that Merkle had generally poor work habits, it would appear that Respondent is attributing to him not only lateness and unauthorized coffeebreaks, but also absence from work more often than reasonable. I have already found that the record fails to establish Respon- dent's claim of lateness. As to unauthorized coffeebreaks, I find it unnecessary to decide whether Merkle had, over a to The timecards in evidence list six absences during January, February, and the first half of March One is marked "sick " As to the others, Merkle acknowledged losing I day because of car trouble on the way to work, and 2 days because of court appearances There are no details in the record as to period of time, taken coffeebreaks at times other than the 10 a m. and 2 p.m. scheduled coffeebreaks, because, apart from other considerations , Martin testified that there was an improvement with reference thereto after he spoke to Merkle about it and other claimed derelictions at the end of February or the first week in March . It follows therefrom, and I find, that, assuming without deciding, that Merkle was for a period guilty of unauthorized coffee- breaks which became a bone of contention between Respondent and Merkle, it ceased being such during the last month of his employment tenure . And, as to absences by Merkle from work more often than reasonable, Camas testified that Martin complained about this to him during their conversation on March 16 . However, Martin made no mention, during his testimony, of discussing such absences with Camas in March when the derelictions of Merkle were allegedly mentioned and considered , nor did he refer thereto in the course of detailing his alleged conversation with Merkle at the end of February or early in March concerning Respondent's claimed dissatisfaction with his work and work habits . In view of the above, I conclude, and find, that the inclusion by Camas of Merkle's absences18 as one of the operative considerations in the decision to terminate him was an afterthought. It follows from all the foregoing, and I find, that the record fails to establish Respondent's claim that Merkle's poor work habits, including his lateness, his unauthorized coffee- breaks and his absences from work , were reasons for his discharge. As to the further claim that Merkle's work "was not up to industry standards and was causing trouble and difficulty" in the field at the installation stage , notably leakages of freon gas, the record discloses the following: Martin testified to having received complaints from the field that manufactured products on which Merkle had connected the refrigerating tubing to other components 19 were not made in a gas-tight manner. Yet, (1) neither he nor any witness for Respondent refuted Merkle 's testimo- ny, which I credit, that the machines or condensing units produced by Respondent are not checked for leaks before they leave the plant and that the only way the unit can be tested is at the installation stage when the installers, who have much more sophisticated equipment than Respon- dent, tie the unit into the refrigeration or cooling system; (2) neither did Martin nor any witness for Respondent refute Merkle's further testimony, which I also credit, that the loss of large amounts of freon gas, which allegedly occurred, was chargeable to the installers since they should have tested the equipment for leaks before charging the unit completely with freon gas; and (3) nor is there any testimony to buttress Martin's mere assertion that it was Merkle who was making the mistakes on these condensing units concerning which he had complaints from the field. In this connection, I attach no probative weight to a bill, in evidence as Respondent's Exhibit 2, from Arco, Inc., a customer of Respondent , for $276.87, assertedly expended by Arco, Inc., for repairing "a leak on a liquid line between the other two absences listed on the timecards 19 Merkle testified that during his employment tenure he had worked on some 80 to 100 refrigeration units CPE INDUSTRIES, LTD. 787 receiver on unit at Valley Farm"; for charging the system with freon gas; and for adding oil to the compressor. For, in addition to the considerations mentioned above, I note that the bill is dated May 26, 1972, about 2 months after Merkle's discharge, and nowhere does it appear when the finished machine was shipped by Respondent. It is, therefore, equally consistent with the probabilities of the situation to conclude that this whole transaction postdated Merkle's discharge. In all these circumstances, and even granting that Merkle made some mistakes during his employment tenure in the course of working on some 80 to 100 machines, I am unable to find that the record preponderates in favor of a finding that the mistakes mentioned by Respondent herein, which Respondent attributed to Merkle and which allegedly resulted in complaints from the field, were, in fact, made by him. Of added significance in this regard is the absence of any evidence herein as to whether Respondent, after receiving these complaints from the field, investigated them and satisfied itself that they were valid and attributable to Merkle. Accordingly, I find, here too, that this asserted reason for Merkle's discharge does not withstand scrutiny and is consequently lacking in merit. There still remains for consideration Martin's testimony, on redirect, that another consideration at the time of Merkle's discharge was that work was slowing up at the plant. It is noteworthy that this reason was not included by Martin, on direct, when he listed the reasons for Merkle's discharge. In addition, Camas did not, during his testimo- ny, mention this as a reason for Merkle's discharge. Further, the above testimony by Martin, on redirect, is at odds with the testimony of Camas that the reason for deciding on March 16 to discharge Merkle at the end of the month was "only to complete the work and see if we could get another man to replace him." In view of the above, I find that the aforesaid reason also does not withstand scrutiny and is therefore lacking in merit. In sum, therefore, in view of the confused state of the record made by Respondent as to the extent of Respon- dent's preoccupation with, and the steps taken by it concerning, Merkle's claimed derelictions, and, in view of my findings above that the reasons stated by Respondent for Merkle's discharge are not supported by the record and are thus lacking in merit, I conclude, and find, that the reasons asserted by Respondent for the discharge of Merkle were not the real reasons. I come therefore to the General Counsel's contention, in his brief, that the real reason for Merkle's discharge was his protected activity, namely, "his demands to be put into Local 638B as promised, a demand last reiterated on March 24, 1972, and met with the promise that it would be 20 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 resolved `one way or the other' within a week." I cannot agree, for the following reasons: It is patent, and I find, that Merkle was not seeking the assistance of Respondent to gain such membership in order to utilize that member- ship as a vehicle to change, improve, or modify any of his conditions of employment; rather, he was seeking thereby to gain entitlement to the benefits which would derive from such membership qua member and not qua employee. Therefore, without passing upon such questions as whether Respondent had, in promising to put Merkle into Local 638B, undertaken an impossible task, or whether, if Respondent could have accomplished that task, Respon- dent would have contravened the Act by so doing, I find no warrant in the Act for concluding that Merkle's pursuit of this objective falls within the ambit of concerted or union activity protected by the Act, and the General Counsel has cited no authority in Board or court cases therefor. Accordingly, notwithstanding my findings hereto- fore that Respondent's asserted reasons for the discharge were not the real reasons therefor, and notwithstanding the fact that the real reason is not ascertainable from this record, it follows, in view of the well-established principle that an employer may discharge an employee for any nondiscriminatory reason or for no reason at all, that the allegations of the complaint herein that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Merkle on or about March 31, 1972, have not been sustained by the record. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce and in operations affecting commerce within the meaning 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. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(3) and (1) of the Act by discharging Arthur Merkle on or about March 31, 1972. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: ORDER 20 The complaint is dismissed in its entirety. 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