Hoover Co.

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Knapp-Monarch Divison of the Hoover Company and United Steelworkers of America, AFL-CIO-CLC. Cases 26-CA-4559, 26-CA-4569, and 26-CA-4590 November 8, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 8, 1973, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed cross-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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. Our dissenting colleague would remand this case for a new hearing before a different Administrative Law Judge because the hearing lasted from 9:30 in the morning until 12:30 the next morning. While we agree that granting the overnight recess would have been a more judicious exercise of the Administrative Law Judge's discretion, we believe that his ruling, in the circumstances of this case, was neither an abuse of discretion nor of such character as to warrant a de novo hearing. Of particular importance to our assessment of the impact of the lengthy session on the hearing's fairness is that the parties, including the General Counsel, had agreed to continue the hearing into the night, if necessary, to complete the case.' About 6 o'clock in the evening the General Counsel moved for a recess until the next morning. He did not object to the length of the hearing per se but objected to continuing that night so he could attempt to serve Billy Smith with a subpena and complete his case-in- chief before Respondent proceeded with its defense. Yet the General Counsel had ample reason to believe that Smith would continue to avoid service, since earlier attempts to serve Smith had proved futile. At the conclusion of the hearing the General Counsel 1 The following appears in the record: JUDGE HARMATZ: Mr. O'Leary, do you deny the representation made by Mr. Murray as to the understanding that it was possible for us to proceed in the evening with this hearing. MR. O'LEARY: Yes, Your Honor, I was in full agreement. stated that Smith had continued to avoid service. He did not object to quashing the subpena. In its exceptions, the General Counsel contends that sheer fatigue of witnesses and Administrative Law Judge contributed to the Judge's inability to make demeanor credibility resolutions. However, all the General Counsel's witnesses testified before 6 p.m., when the Administrative Law Judge's observa- tion of demeanor would not be affected by their "sheer fatigue." Since the General Counsel had agreed to continue into the night and since the General Counsel has not shown that its case was prejudiced by the length of the session, we see no reason for conducting a new hearing here. Accordingly, we shall adopt the Administrative Law Judge's Decision and dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER KENNEDY, dissenting: I would remand the above case for a new hearing because of the abuse of discretion by the Administra- tive Law Judge in requiring the parties to conclude the hearing without an overnight recess. The hearing opened at 9:30 a.m. on the morning of April 24, 1973, and was closed 15 hours later at 12:30 a.m. on the morning of April 25, 1973. In view of this marathon session, it is not surprising that upon reflection the Administrative Law Judge "was not entirely impressed with the demanor of any of the witnesses who appeared during the entire trial." It is true that the parties had agreed that they would make an effort to finish the case in I day of hearing. The record shows, however, that the General Counsel could not complete his case in chief by 6 p.m. A witness by the name of Billy Smith had been uncooperative with the General Counsel and the General Counsel wanted to make one final effort to serve Smith with a subpena that evening before resting his case.2 The General Counsel requested therefore that the case be continued until the following morning at 9:30 a.m. The Administrative Law Judge denied the request even though the General Counsel accurately predicted that the case could not be concluded by "10:00 or even 11:00 o'clock at night." 3 While the Administrative Law Judge granted a 1-hour dinner recess, the hearing 2 The General Counsel stated that efforts to serve Smith before the trial had been unsuccessful . The General Counsel amended his complaint to delete an 8(a)(3) allegation with respect to Smith , but the General Counsel wanted Smith to testify concerning the union activity of Jimmy Lee Collins. 3 The following colloquy appears in the record: 207 NLRB No. 13 KNAPP-MONARCH DIV. OF HOOVER CO. 77 proceeded throughout the evening until 12:30 a.m. at which time the hearing was closed. I recognize that we must avoid the problem of delay in administering our Act and that our cases should proceed with dispatch. We are here con- cerned with a question of overnight adjournment of a hearing and not a question as to whether a hearing should be postponed. A litigant, whether General Counsel or Respondent, is entitled to a reasonable opportunity to present his evidence. I am of the view that the requirements of a fair hearing are not satisfied by requiring the litigants to continue until 12:30 a.m. in the absence of most compelling reasons. There is no compelling reason shown in this record. My colleagues agree that it would have been more judicious to grant the overnight recess, but they do not believe that the Administrative Law Judge's ruling was an abuse of discretion "in the circum- stances of this case." Specifically, they state that counsel had agreed to continue the hearing into the evening to complete the case. In my view, counsel should not be required to continue in hearing until 12:30 a.m. simply because he expressed a willingness, in a spirit of cooperation, to try to conclude a hearing in 1 day. An agreement to continue into the night is not an agreement to continue beyond midnight into the morning. Judicial review of this proceeding appears unlikely since the majority is, dismissing the complaint herein. Nonetheless, the decision of the majority in this case should serve as a warning to all parties and to all counsel appearing- before this Board that if they express_a willingness to cooperate and make an effort to conclude a hearing in 1 day, such expression may be interpreted by an Administrative Law Judge as an agreement to continue in trial after midnight. And if one of our Administrative Law Judges relies on such an expression in denying an overnight recess, a majority of this Board will affirm that injudicious denial. In my opinion, the denial of the overnight recess in this case was such an abuse of discretion that the Board should take remedial action. Our failure to take corrective action tends to undermine public confidence in our entire corps of Administra- tive Law Judges. I find merit in the General Counsel's exception to the Administrative Law Judge's failure to adjourn the hearing at 6, p.m. as requested by counsel for the General Counsel. A new hearing before a different Administrative Law Judge is the only corrective action available to us.' finish up in, say, 10:00 or even 11:00 o'clock at night , that we could finish this in one day. Of course, General Counsel would be more than happy to facilitate the party. However, the way it goes now for me to effect my service of process this evening and still have my witness, it would be until 10:00 or 11:00 o'clock tonight before I can put on the remainder of my case, and I feel that this prejudices my presentation and evidence of mine at the time. And General Counsel cannot see why it is at all prejudicing the other party to continue it until tomorrow morning. JUDGE HARssxrz: Are you saying that you would be physically too tired to be able to effect your return on the subpoena this evening to proceed with that witness? Ma. O'LEAsY: No, I'm not saying that, but I am saying that in the late hours it will have been a right long time for us to have been sitting here. JunGE HARm oz: I agree with that, but I think the objection should have arisen while we were talking about it earlier. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This case was tried on April 24, 1973 in Holly Springs, Mississippi. The charge in Case 26-CA-4559 was filed on November 24, 1972. The charge in Case 26-CA-4569 was filed on December 1, 1972. Pursuant thereto, the Regional Director for Region 26, on January 10, 1973, issued an Order Consolidating Cases and Consolidated Complaint, which alleged that Knapp-Monarch Division of the Hoover Company, herein referred to as Respondent, independently violated Section 8(a)(l) by coercively interrogating em- ployees and threatening reprisals and Section 8(a)(3) by discharging employees Billy Smith and Nancy Edwards because of their union activities. The charge in Case 26-CA-4590 was filed on December 26, 1972, and pursuant thereto, the aforesaid Regional Director, on January 24, 1973, issued a second order consolidating cases and amended consolidated complaint, further alleging that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Jimmy Lee Collins for unlawful reasons., Respondent filed answers to the complaint and amended complaint, admitting certain allegations, but denying that it engaged in any unfair labor practices. After the hearing, the General Counsel and Respondent filed briefs, which I have carefully considered. Upon the entire record in this case and from my observation of the witnesses and their demeanor while testifying, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer is a corporation with a plant and place of business located in Holly Springs, Mississippi, where it is engaged in the manufacture of home appliances . During the 12-month period preceding the issuance of the initial complaint, a representative period, Respondent in the course and conduct of its business operations , sold and shipped'goods valued in excess of $50,000 directly to points located outside the State of Mississippi and during said MR. O LEAKY: Yes, Your Honor. First of all, General Counsel feels that it is not being obstinate or trying to prejudice any party to ask to continue the hearing until 9:30 in the morning. That we feel because of the hour, true that we are in agreement that if we think that we could I At the hearing, the General Counsel's unopposed request to amend the original complaint by deleting the 8 (a)(3) and (1) allegations based upon the discharges of -Billy Smith and Nancy Edwards, as well as an 8(a)(1) allegation based upon one of several alleged threats was granted by me. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period, it received goods, products, and materials valued in excess of $50,000 directly from points located outside of said State. Said complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that United Steelworkers of America, AFL-CIO-CLC, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Holly Springs plant of Respondent has a work force of about 850 employees. They are deployed on' 'three separate shifts, with about 500 assigned to the first shift and 250 to 275, to the second, with only about 20 on the third. Some time in the fall of 1972, the Union began organizing these employees. The events here in issue are alleged to have occurred in October, November, and December 1972. During that period the Respondent conducted meetings among "small groups of employees to apprise them of the Company's opposition to the Union, and to answer questions that employees might have concerning their rights, the Company's position, and general matters concerning the organization drive. Howev- er, the record does 'not define the specific nature of the Union's effort during the period covered by the complaint, nor are details provided -as to, its degree of success or intensity among the various segments of the'Holly Springs work force during said period. As indicated the complaint alleges independent 8(a)(1) violations which are confined to some 15-17 second shift employees on Respondent's "stove line," all of which are attributed to Night Superintendent Maurice Dutton.2 In addition the complaint alleges an 8(a)(3) violation based upon the discharge of Jimmy Lee Collins, a third shift leadmaii in the paint department. The analysis set forth below of the, issues raised and the conflicting testimony bearing thereon takes full account of the absence of evidence on this record showing that either the second shift stove line employees or any employee on the third shift, including Collins, supported the Union to a greater extent, or in greater numbers than other employees, or that Respondent had any reasonable basis for believing this to have been the case.- ' I B. Interference, Restraint, and Coercion The complaint alleges that Respondent, through Maurice Dutton, independently violated Section 8(a)(1) of,, the Act by coercively interrogating and threatening employees 2 Dutton at all times material to this proceeding held the title of night superintendent. His position was changed prior to the hearing; however, and he is now entitled "Production Manager." The complaint alleges, the answer admits, and I find that Dutton at all times material was a supervisor and agent of the Respondent. concerning their union activity. In support of these allegations, the General Counsel produced four witnesses, Kirby Edwards; Linda Washington, Betty Watson, and Alma Joy Goodman. At the time of the events here in issue all were employed on the , second shift, stove line. Essentially they attribute various unlawful statements to Dutton made at times proximate and related to the discharge of one Billy Smith,, leadman on the stove line. The Smith discharge3 occurred on or about November 17, 1972,4 following a disturbance on the stove line. The testimony adduced on behalf of the General Counsel sheds no light upon the events preceding this disturbance, and, in this respect, Dutton's testimony was not contradicted and entirely credible. Thus, according to Dutton, he had received a report that evening that two black female employees assigned to the press department were very upset, and had approached their foreman, one Max Chism, and informed him that Billy Smith had told them that Chism was calling them "Niggers." Dutton decided to straighten the matter out, and called the two girls and Chism to his office . To put it stop to what Dutton described as "the rumor," he decided to meet with all four of those who were reportedly involved in his office., Dutton paged Smith over the intercom, but getting no response, sent Chism to summon Smith personally. Chism returned reporting that Smith had indicated that if Dutton wished to see him, Dutton should come down to the stove line . Dutton then again' paged Smith, - who this time answered by telephone, advising Dutton that if he wanted to see him, Dutton should come down to the floor. Dutton went to the stove line and found that the stove line employees were not working, but standing in groups, apparently discussing something that had provoked them. From this point on the testimony is in conflict . Edwards testified that Dutton approached Smith, shaking his finger in his face, stating that Smith was going to do everything that Dutton said or be fired, that he knew Smith was for the Union, and that he was going to fire Smith because he was for the Union. According to Edwards, Dutton took Smith to the office, and the girls on the stove line followed to that location soon thereafter, but were instructed by Dutton to return to work or be fired. Linda Washington testified that, on confronting Smith, -Dutton started out talking low and could not be heard, that he,' then raised his voice and said that if Smith continued working for the Union, he would fire Smith. Dutton and Smith then went to the former's office . Dutton, on request of 'one of the employees, before leaving told other stove line employees that they could come to his office in 10 minutes. They, did so and were informed of - Smith's discharge and ^ his replacement by Edwards, and were instructed to return to work or be discharged. Alma Joy Goodman, inmost respects corroborated Washington, except that she asserted that she heard Dutton tell Smith that he, would fire him or any , other person who had anything to do with the Union. Goodman 3 As heretofore indicated , this discharge was alleged as an 8(a)(3) violation in the original complaint but deleted on the unopposed motion of the General Counsel at the hearing. 4 All dates refer to 1972 unless otherwise indicated. KNAPP-MONARCH DIV. OF HOOVER CO. 79 further testified that the next evening, after Smith's discharge, a meeting was held in the conference room and Dutton stated that he knew all about Unions and that he wouldn't have any of us that had any part to do with the Union.' Dutton had termination papers in his, hand, and he told the employees that he would write anybody up that was ready to leave. When Goodman raised her hand to ask a question, Dutton accused her of being one of the troublemakers and that -he had her papers ready to write up.5 Other testimony relative to Respondent's action with respect to Smith was related by Betty Watson. Watson was not present on the day- of Smith's discharge. However, on the previous night, she claims that as she was entering the cafeteria with a fellow employee (Jessie Craig), she overheard Dutton tell an unidentified man standing with him, that if he found out that Billy Smith was for the Union, "he would get him out of there for sure." Watson further testified that on the night after the discharge, she met with Dutton in his office to discuss shortages in her paycheck. In the course of this conversation , she asked if Smith had been fired because he was for the Union. Dutton then asked Watson if, she was for the Umon. Watson claims to have refused to answer. Dutton went on to state that he knew there were Union people in the plant and that if he found out that stove line people were for the Union he would fire them on the spot. The foregoing testimony by the employees, if believed, would clearly substantiate the 8(a)(1) allegations of the complaiint as to threats and unlawful interrogation. However, Dutton denies making these 'statements or engaging in such conduct. In assessing credibility, I note that I was not entirely impressed with the demeanor of any of the witnesses who appeared during the entire trial; I am satisfied that, whether attributable to faulty recollection, difficulties in perception, or deliberate misstatement, not a single witness related testimony that convinced me as being entirely credible. With this in mind, however, I am satisfied that the entire record requires a disbelief of the General Counsel's witnesses as to the above matters. The testimony adduced on behalf of the complaint in these respects was vague, contradictory, and inconsistent with the probabilities. The General Counsel' s witnesses to the stove line and related incidents had a hazy recollection of the sequence of events, and, indeed, the three employee witnesses to the Dutton Smith conversation gave three different versions of the allegedly threatening statement. Furthermore, with respect to the meeting with stove line 5 Goodman in response to a leading question propounded by the General Counsel placed this meeting as occurring on the night after the Smith discharge. No other employee testified to such a meeting and, if Goodman, intended to testify, that it occurred at that time, I find that she was mistaken. A meeting of the type she describes did occur on the night of the discharge, according to the testimony of the remaining witnesses for the General Counsel and Dutton I find that this was the meeting the above testimony related to. It is rioted that neither Washington nor Edwards testified to any union related threats made by Dutton at that meeting. 6 Although the General Counsel in his brief argues that race was not an issue here, his reading of the record concerning the identity of the individual accused of making the racially mflamatory statement is at variance with mine. As I read the record Smith was not accused of having made such statements, but of circulating an accusation that another foreman had done so. 7 1 would note, however, that Jimmy Lee Collins, whose discharge is in employees immediately after the Smith discharge, Good- man's testimony as to a threat at that time, was uncorrobo- rated and contradicted by Edwards, who testified that, apart from that made to Smith on the stove line, Dutton made no further reference to 'the Union that evening. Washington, though also present at that meeting, does not testify to any mention of the Union at that time by Dutton. In addition to the foregoing, on the record as developed, a crediting of the General Counsel's witnesses on the alleged interrogation and threats would require my acceptance of a highly improbable state of events- I deem it highly unlikely that Dutton would have made reference to the Union in dealing with the problem arising from the stove line. Uncontradicted evidence establishes that this incident and the discharge of Smith was oriented in a racial disturbance.6 There is no suggestion in this record that the Union's strength was racially oriented nor does it appear that Dutton had any reasonable basis for assuming this to be the case. In short, from an objective point of view, though it does appear that race may have been an issue among stove line employees, the Union wasn't. Further- more the credible evidence' does not establish that Smith himself engaged in any significant union activity. Indeed, Washington testified that she had no knowledge that Smith was' working for the Union, nor did she hear him discuss the Union with other people. Betty Watson also testified That she did not know whether Smith was involved with the Union, and that he never mentioned it. In addition, no employee , connected with the second shift stove line testified as to any significant union activity at times material to the Smith discharge by employees assigned to that operation, and the impact of the organization drive upon them was in all probability summed up accurately by Goodman who testified that she did not know much about the Union.7 It seems only reasonable that if Smith was engaged in significant union activity, his fellow employees on the stove line, who rose to his support -during the confrontation with Dutton, would have acquired knowl- edge of this fact. Against this background, it is noteworthy that the Company opposed the Union and concededly was engaged in' a systematic, but legitimate antiunion organization effort. Thus, meetings were held reaching some 250 employees, in small groups. But there is assertion that in the course thereof, unlawful statements were made.8 I cannot accept as true, that in this plant of 850 employees, Dutton would have associated a race disturbance with union activity and on that basis singled out a department issue here, did testify that he knew South, and that he discussed the Union with Smith and was told by the latter that he supported the Union. Although the degree of Smith's union activity is not defined through this testimony, I consider the testimony of stove line employees to be more reliable and find that Smith's union activity was, at best, both casual and minimal. 8 Edwards did testify that he attended a meeting of stove line employees conducted by Dutton in the latter part of October. This meeting, according to the sense of Edwards' testimony, was conducted prior to the Smith discharge. According to Edwards, Dutton polled the employees, asking for a show of hands of those who were for the Union. I do not credit Edwards. His demeanor was not impressive, and he showed both a faulty recollection and a limited insight as to the significant events. There being no corroboration of any such poll by other stove line employees, I find his testimony as to be unreliable. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of only about 17 employees, none of whom were shown to have engaged in activity on behalf of the Union, as the sole object of threats and repeated interference with employee statutory rights to join labor organizations. I do not credit the testimony of Edwards, Washington, Goodman, and Watson, and, accordingly, I find that the General Counsel has failed to establish by a preponderance of the credible evidence that Respondent coercively interrogated or threatened employees in violation of the Act. I shall recommend dismissal of the 8(a)(1) allegations of the complaint based thereon. C. The Alleged Discrimination: The Discharge of Jimmy Lee Collins Jimmy Lee Collins was hired by Respondent on September 19, 1972, as a cleanup man in the paint department, at a rate of $1.87 per hour. Towards the end of October, Collins was promoted to the position of "group leader" in the paint department cleanup operation. His new rate of pay was $2.68 per hour. This promotion appears to have resulted from Collins' good job perform- ance, and nothing in this record arouses suspicion as to its bona fides. The cleanup operation in the paint department involves maintenance operations in the paint booths.9 The cleanup crew was required to tear the booths down by removing the old paint, changing the screens, stripping all paint off the wall, regreasing the walls, and then reassembling the booths. After these operations are completed, the crew would spray paint with a booth coat, which is a highly volatile material. After Collins' promotion, he had been complimented on his work by Foreman Cook, and Respondent concedes that it had no complaints as to his performance up to the time of the event which resulted in his discharge. The incident resulting in Collins' discharge occurred on December 5, 1972. The only other member of the cleanup crew working that night was an employee by the name of Larry Bridgeforth. Daryle Cook, Collins' immediate supervisor, was not present that night. That evening Collins punched in at or about 10:30 p.m. He informed Bridgeforth that they had one booth to clean, so as to allow the paint department to operate the next morning with all three booths in good operating order. (The other two booths apparently had previously been stripped and resprayed.) Bridgeforth and Collins started 9 There are three such booths. Their dimensions are about 45 by 40 inches, to a height of about 6-1/2 feet. 10 A question was raised as to whether Davis is a supervisor . However, since the evidence adduced by Respondent concedes that his authority included the right to shut down any machine that was in his judgment inoperable, I need not resolve whether he was clothed with the authority of a supervisor. Having vested him with authority independently to make decisions as to whether or not a machine could operate, the Respondent cannot deny either that he was an agent for such purposes or that the exercise of such discretion was binding on the Company. 11 Collins testified that he was informed that the fan could not be fixed that night. Davis testified that he did not tell Collins how long it would take, since he did not know. According to Davis, he put a man on the job immediately. Mills also testified that he told Collins that he didn't know how long the repair job would take. Resolution of this minor discrepancy in the testimony is not considered necessary to the result. I do not credit Collins' denial that Mills accompanied Davis and was present during investigation of the blower breakdown. Although Collins stripping down the booths. This took about an hour and a half. Eventually, the point was reached where the walls were to be sprayed with a white booth coating, and Collins prepared for this step by setting up his equipment. Parenthetically, it is noted that each booth has a blower, which is a fan-type apparatus about 12 feet in diameter, located at the top of the booth, designed to pull the paint fumes out of the plant. When Collins prepared to begin spraying, he turned the blower on. Bridgeforth saw that the blower had caught fire and called this to Collins' attention. Seeing that the fan was smoking, Collins immediately turned off the blower, since he knew that the paint was highly flammable. Collins summoned Ted Davis, a night shift leadman in the Maintenance Department.10 Davis and Hubert Mills, the second shift maintenance department leadmen, went to the paint booth in question. The fan was examined, and Collins was informed that the fan was frozen up, and that it could not be fixed for some time.11 All agree that Collins was told not to use the fan, but a sharp conflict exists as to whether or not Collins was told by Davis that he could continue to paint the booth in question, by turning the blower on in each of the remaining booths and relying upon them to remove the fumes.12 In any event, some time thereafter Collins turned on the blowers in the other booths, and commenced spraying the third. After painting for a while, Collins conceded that he "could really smell the fumes." He continued, however, because determined to provide the paint department with three clean booths by the next morning.13 He began to get a little dizzy but still continued. Collins then developed a headache, so he went outside for about 10 minutes. He returned and then collapsed. Bridgeforth carried Collins outside and called Ted Davis. Davis took Collins to the first-aid room, filled out an accident report and called the company doctor, advising the latter that Collins had suffered an overdose of paint fumes. Collins was taken to the doctor's office and placed under his care. He did not return to work for the Company, but remained under the doctor's care until December 19, 1972. In the interim, on December 15, 1972, Collins was contacted at his home by Ira Walker, a foreman, and informed that Steve Foster, Respondent's personnel manager, wanted to see him. That afternoon Collins went to the personnel office, where he was told by Foster of the latter's regrets about the accident, admitted on direct examination that Davis was accompanied by an unidentified maintenance man, he denied that this was Mills on cross. I was impressed with Mills' demeanor, and am satisfied that his testimony concerning this incident was not the complete fabrication that belief of Collins would require. 12 Collins, so testified, over the denial of both Davis and Mills. The latter testified that they cautioned Collins as to the hazards of fumes, and instructed Collins not to paint until the blower had been fixed. Mills concedes, however, that he told Collins that he could continue to paint in either of the other two booths, as long as those fans were on. I would note that it is quite possible that this was actually said, but that in the course of conversation, Collins misunderstood and thought this to be the suggestion his testimony attributes to Davis. 13 The Paint Department had apparently been down because of a seasonal inventory, and Collins was of the impression that production would be resumed on the first shift, the next day. Collins was also under the impression, that visitors might be brought through the department. For these reasons he wanted all the booths in top shape. KNAPP-MONARCH DIV. OF HOOVER CO. 81 but that since the Company felt that Collins was at fault, he was to be terminated.14 The Respondent contends that this discharge was unrelated to any union activity, but was based upon Collins' "blind ignorance" in violating instructions so as to create a safety hazard to himself and other employees, all occurring during his probationary period.15 Although I do not have any doubt as to my ultimate finding, I am puzzled by certain aspects of the 8(a)(3) issue. For while I regard as highly suspicious Respondent's explanation for the dis- charge, I am at the same time convinced that the General Counsel has failed, in this record to establish a causal link between Respondent's action and union activity. With respect to Respondent's defense, Dutton testified that, shortly after December 5, he independently investi- gated the paint booth blower incident. After obtaining a written statement from employee Bridgeforth and speaking to leadmen Mills and Davis, he was convinced that Collins was at fault, and recommended the discharge to B. O. Taylor, Respondent's employee relations manager, who then approved. I have no reason to doubt and find that a safety hazard existed as a result of Collins' actions on December 5. However, the handling of this matter and its ultimate disposition by Respondent's officials, in the circumstances, reflects a lack of reasonableness and compassion to a degree suggesting that the incident was seized upon as a pretext. Thus, Collins quickly in his employment demon- strated a sufficient proficiency to justify advancement to group leader status. During his tenure as group leader the quality of his work remained consistent. However, Dutton and B. O. Taylor assert that his misjudgment on December 5, as reported to Dutton by others, required his discharge. It is obvious to me, as it should be to anyone reading this record, that an overzealous approach to his work and Collins' interest in doing a good job for the Respondent, led to the accident in question. It is precisely this type of self-motivation that in all probability led to Collins' speedy advancement following his initial hire. I find it hard to believe that any employer, including Respondent, would disregard such an attribute, and terminate an employee because of a single act of misjudgment committed in the course of implementing newly conferred responsibility. I also find it difficult to understand why Dutton, in conducting his investigation did not seek out Collins to obtain his side of the story. According to Dutton, Davis, Mills, and Collins were equally reliable leadmen. Yet, he relied on the assertion of Davis and Mills that they had instructed Collins not to paint the booth in concluding that 14 Except as indicated, the foregoing is based upon a composite of the testimonies of Collins, Mills, Davis, and Bndgeforth. 15 I give no weight to Respondent's attempt to mitigate certain questionable aspects of its defense on grounds that Collins was a probationary employee. Collins, prior to December 5, had already demonstrated his value as an employee, and the purposes of any probationary period had easily been met. In short, if Collins was good enough to be made a leadman, he was good enough to have any indiscretions attributed to him measured according to the same standards as are applied to other accepted employees. I simply do not believe that the arbitrariness reflected in the treatment of Collins can be dismissed as attributable to his probationary status. 1s It also appears from the record, that Dutton was satisfied with oral accounts from Mills and Davis but insisted upon a written statement from Bridgeforth. Dutton explained this as stemming from his difficulty in the hazard was created by Collins in violation of their instructions. Dutton is experienced in matters of plant management, and he was mindful of the authority and responsibility invested in maintenance leadmen to shut down a machine which should not be operated. From this, it would be obvious to Dutton, that the accounts given by Davis and Mills exonerated them from responsibility and to this extent were self-serving; for, they would have been negligent had Collins' actions been based on their advice. I have difficulty believing that Dutton was so shallow as to allow this possibility to pass beyond his thoughts. Yet, the basic consideration of allowing one to confront his accusers was not accorded by Dutton to Collins. 16 On the other hand, this record furnishes no basis for converting my doubts as to the assigned reasons for the discharge, into a finding of union-related discrimination. Collins' union activity was limited to the signing of a card and orally encouraging others to do so. According to Collins, he did not believe that any supervisor was aware of his activity. Although Collins testified that his efforts on behalf' of the Union intensified after his promotion to group leader, I find his testimony, in this regard to be unreliable in the face of Bridgeforth's testimony that he took his lunch break with Collins almost every day but Collins only on one occasion mentioned the Union. According to Bridgeforth, Collins never asked him to join a union or told him where he would get a card, but, on that single occasion, merely stated- "we . . . [are] . . . trying to get a union - ... be cool." 17 Accordingly, I do not find that Collins to a significant degree engaged in union activity. Nor can I agree with the General Counsel that Respondent suspected that Collins was an employee organizer. The General Counsel points to two factors in support of this claim: (1) At a late September or early October antiunion meeting conducted by Dutton, Collins, during a question and answer period, asked whether the Company would close down if organized and also asked if it was illegal to engage in organizational activities, and (2) Dutton on one occasion saw Collins talking with Willis Smith. In my opinion, these incidents are neutral to the issue of knowledge. As to (2) I am sure that many employees were observed talking with Smith and, in any event, I have found that Smith did not engage in significant union activity. As to (1), the questions raised by Collins were typical of those raised by employees, and I find that his conduct at this meeting, about 11 weeks before his discharge, would not necessarily expose his sympathy. I am satisfied and find that Collins' union activity was limited to understanding Bndgeforth's version. I would note; however, that the question of whether or not Davis and/or Mills instructed Collins not to paint the booth would call for a simple answer. Though Dutton's belief that such instructions were given was an important predicate for the discharge, Bndgeforth's statement is ambiguous on that point, and hardly could be construed as clear and unmistakable support for Mills and Davis as to this matter. There is a suggestion in Dutton's finding it necessary to obtain a written statement from Bndgeforth of an attempt at building a case against Collins. 17 In my opinion, Bridgeforth's testimony as to his discussions with Collins furnished an objective and reliable indication of the extent of Collins' union activity I believe on the basis of this testimony, in contrast with the general and vague testimony of Collins, that, while Collins was a union supporter, his activities in that regard were minimal. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his signing a card and to casual conversation with fellow employees concerning the advantages of membership, and that Respondent had no reasonable basis for suspecting that he was in any way associated with the union effort.ts Furthermore, and much aside from the absence of knowledge, while taking account of the dubious circum- stances surrounding the discharge, I deem it highly improbable that Respondent would have selected Collins for termination in reprisal for union activity or to rid itself of a union member. This discharge occurred while unfair labor practice charges were pending, and in an atmosphere otherwise free of unlawful conduct. The timing of the discharge arouses no suspicion. True, Respondent opposed the Union, but nothing in this record suggests a propensity to engage in serious unfair labor practices, if any. Furthermore, it seems inconceivable that Collins, even on his own description of his union activity, if known by Respondent, would have been the tactical objective of an antiunion reprisal. Other employees were open in their espousal of the Union and were not in any way intimidat- ed. Collins was employed on the third shift (17 to 20 employees) and seemingly would have limited access to the main body of 850 employees at the Holly Springs plant. Absent stronger proof than exists here, it simply makes no sense to me that Collins would be the sole employee selected by Respondent for a union related discharge, during a campaign otherwise free of unfair labor prac- tices.is Considering the background against which the discharge occurred, including the minimal union activity of Collins, the lack of evidence that Respondent knew or had a basis for belief that he engaged in such activity, the absence of any suspicion generated by the timing of the discharge, and the overall improbability that Collins would have been selected for a union-related discharge, I am unwilling to infer a proscribed motivation from the fact that I regard as unpersuasive the reason assigned by Respondent for this termination. Accordingly, I find that the General Counsel has not established by a preponderance of the evidence that the discharge of Collins was motivated by considera- tions proscribed by Section 8(a)(3) and (1) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed: ORDER20 IT IS ORDERED that the complaint issued herein against the Respondent, Knapp-Monarch Division of The Hoover Company, Holly Springs, Mississippi, be, and it hereby is, dismissed. 18 On the basis of the foregoing, I see no reason to discredit Dutton s denial of such knowledge and I accept his testimony in this regard. 19 The General Counsel argues that Respondent's actions against Collins were a two-pronged effort to obtain his alliance in the antiunion movement First, it promoted Collins to leadman, a reward which proved unsuccessful when Collins thereafter continued to support the Union. As its next step, Respondent seized upon the first available pretext to eliminate Collins from any further activity adverse to its interests. Although a possible explanation of what actually occurred here, I reject this theory both as having no record support, and from my assessment of the probabilities, as being a bit farfetched. 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, recommendations, 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.