Grede Foundries, Inc.

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grede Foundries, Inc. and International Molders and Allied Workers Union, AFL-CIO-CLC. Case 30-CA-2355 June 18, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On November 28, 1973,1 Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding dismissing the complaint in its entirety. Thereafter, General Counsel filed excep- tions and a supporting brief and Respondent filed cross-exceptions to the Administrative Law Judge's Decision. 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 Administrative Law Judge's rulings, findings, and conclusions only to the extent consistent herewith. The Administrative Law Judge found that the Respondent did not violate Section 8(a)(3) and (1) of the Act when it suspended Albert Hankins on May 14, 1973, and discharged him on May 25, 1973. The Administrative Law Judge based his finding on the fact that Albert Hankins was absent or tardy on a number of occasions, was subjected to a disciplinary layoff for tardiness in mid-May, and was tardy again on the morning of his discharge. Because the General Counsel did not introduce evidence as to the work histories of other employees and the disciplinary actions instituted against employees with absentee records similar to Hankins, the Administrative Law Judge concluded he could only speculate that Hankins' work record was "no worse than that of any other employee"; 2 such speculation, as the Administrative Law Judge pointed out, could not be the basis for finding discriminatory treatment and therefore the complaint was dismissed. Notwithstanding the absence of evidence as to the general treatment accorded other employees, we find, contrary to the Administrative Law Judge, that the preponderance of evidence on the record as a whole establishes that Hankins' alleged tardiness and I All dates herein are 1973 unless otherwise indicated. z At the hearing, the General Counsel subpenaed a large volume of timecards, including those of Hankins . Although none of Hankins' cards was among those given to the General Counsel, the General Counsel did not offer into evidence the attendance records of the other employees. On December 11, 1973, the General Counsel submitted a motion to reopen the record requesting an examination of all relevant company records. On absenteeism was a pretext used by Respondent to rid itself of an ardent union supporter in violation of Section 8(a)(3) and (1) of the Act. Hankins' activities on behalf of the Union began during the first organizational campaign in the spring of 1972. The record reveals that Hankins chaired the 10- to 12-member in-plant organizing committee, secured signatures on authorization cards, represent- ed the Union at a consent-election conference held at the Board's Regional Office, and questioned William Grede, founder of Respondent, after Grede urged employees to vote against the Union at a meeting 2 days before the election. The Union lost the election on June 9, 1972, after which unfair labor practice charges were filed.3 In September 1972, Hankins was put on notice that Respondent had singled him out on the basis of his union activities. Willie Bell, Hankins' supervisor at the time, approached Hankins and told him that the supervisors had identified him as a "pusher" for the Union. According to the credited testimony, Bell warned Hankins that ". . . now everything . . . you do now you should do . . . as right as possible because . . . they're watching you." Sometime in late October or early November 1972, Hankins inaugurated weekly meetings among the employees in order to keep the organizational drive visible. In December 1972, Hankins testified on behalf of the Union during the unfair labor practice hearing. The solicitation of signatures and the election campaign were renewed in late March and early April 1973. Hankins remained the head of the in-plant organizing committee and during the ensu- ing weeks distributed authorization cards to his fellow employees at the plant, on the parking lot, and in a tavern located near the plant which was frequented by Grede employees as well as supervi- sors. On May 14, during the organizing campaign, Hankins was given a 3-day disciplinary layoff when he reported to work late, although he had called in promptly. When he returned to work on May 17, he was given a disciplinary notice and a warning that any future misconduct would result in discharge. On May 23, Respondent received a letter from Noble Blake, International representative of the Molders, confirming the fact that Hankins headed the Union's in-plant organizing team since 1971. Two days later, Hankins arrived at work approximately 7 to 8 minutes late and was discharged. As the Administrative Law Judge found, there can be no doubt that Respondent was well aware of December 17, 1973, Respondent filed suggestions in opposition to General Counsel's motion to reopen the record . On the basis of the pleadings and record before us , the General Counsel's motion to reopen the record is denied. 3 On July 26, 1973, the Board issued Grede Foundries, Inc., 205 NLRB No. 12, in which it found that Respondent had violated Sec. 8(a)(1) of the Act and set the election aside. 211 NLRB No. 101 GREDE FOUNDRIES, INC. 711 Hankins' union activities. In view of Respondent's union animus during the first organizational cam- paign, as evidenced by the unfair labor practices committed, the surveillance of Hankins after he was identified as a "union pursher" indicates that Respondent continued in its hostile attitude towards the Union. There can be no doubt that the discharge of the Union's most visible and ardent supporter just after the Union's election campaign resumed had the effects at which the Act's sanctions are most vigorously directed. We are unconvinced by Respondent's claims that Hankins was discharged for his "tardiness and absenteeism" and not for any discriminatory reasons. We note first that Hankins did not receive any warnings regarding his attendance record until February 1973, despite Respondent's claims that Hankins' tardiness was a problem from the very beginning of his employment at the plant. Hankins' alleged tardiness and absenteeism must also be viewed in its proper context since Foreman Cross admitted that absenteeism is a problem among all the employees at the foundry. Secondly, we note that, while Foreman Cross claimed he was solely responsi- ble for the decision to terminate Hankins, Cross failed to state definitively the grounds for his decision, but testified merely that he thought Hankins was discharged for attendance and he didn't think defective and improper work was a consideration. In addition to Cross' equivocation at the hearing, Respondent offered shifting reasons for the dis- charge which do not withstand scrutiny upon examination of the record. In its answer to a prehearing order for a more definite statement, Respondent contended that Hankins was terminated for "refusing to ' obey orders, low production, defective and improper work, disrupting and inter- fering with production by entering the plant on off time and visiting with employees during their working hours, unreported absences, repeated and persistent tardiness." Yet, at the hearing, Foreman Cross testified that he thought that Hankins was terminated for "absenteeism and tardiness" and not for low production, refusing to obey orders, or doing defective or improper work. Respondent's allegations in its answer to the aforementioned order reiterated the contents of a May 17 disciplinary notice which was given to Hankins upon his return from the 3-day disciplinary suspension he receive on May 14. The notice contained the following charges: You have just returned to work after a 3 day 4 Metcalfe, Inc., d/b/a/ Sentry Food Store, 198 NLRB No. 127. See also J. P. Stevens & Co., Inc., 171 NLRB 1202, 1220, enfd 417 F.2d. 533 (C.A. 5), wherein it was noted "It thus appears that ... Respondent included the disciplinary layoff due to your attendance. Your overall record, which has been recorded, shows that you have had disciplinary action or write up for tardiness, absenteeism, quality of work, including a 3 day layoff for insubordination, and using the meter during production while working, because of your over-all record you are hereby notified that any further infraction of any of these items will be cause for immediate dismissal and termination of employment. We find, as did the Administrative Law Judge, that the notice's "reference to earlier problems . . . upon examination did not reflect as seriously on Hankins' work record as might at first appear." For example, the disciplinary writeups for poor quality work were meted out on two occasions when Hankins' pro- duction was affected by an illness, after which Hankins received no other disciplinary reprimands for poor quality work. In fact, Hankins was consist- ently one of the highest producing employees in the plant. The 3-day layoff for insubordination referred to an incident in October 1971, when Night Superin- tendent Schneider fired Hankins because he refused to work until a hazardous condition had been removed. Less than 3 days later, Personnel Manager Nodolski asked Hankins to return to work. Although Respondent offered in evidence a warning allegedly given to Hankins at that time, the Administrative Law Judge credited Hankins' testimony that he did not see the warning until May 17, and Schneider did not testify. Thus, the authenticity of this warning notice is doubtful. The reprimand based on Hankins' misuse of the delay meter was issued in September 1972, when confusion existed among all the molders as to the proper use of a delay meter which registered lags in production caused by circumstances beyond the control of the employee. On September 14, 1972, Hankins misused the meter and signed a warning. However, according to the credited and uncontra- dicted testimony, at a meeting of employees the next day, Works Manager Brendler, in response to Hankins' protest, directed Foreman Cross to destroy the reprimand. As far as Hankins knew, Cross had complied with Brendler's order and Brendler was not called to refute this testimony. Thus this reprimand also appears not to be legitimate. It is apparent that the original "proffered grounds for the discharge do not withstand scrutiny in that they are not only without foundation in the record but they are constantly shifting, thereby making the `claim of non-discrimination the less convincing.' "4 Finally, we note that while Respondent asserts that two additional reasons in an effort to becloud the pretextuous nature of the third asserted reason and to create the appearance of a discharge for cause. Such conduct is `additional evidence of discrimination. " 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hankins' absenteeism and tardiness is the reason for the discharge, there is also evidence in the record that Hankins complied with Respondent's absentee poli- cy as set forth in notices to all employees posted on July 10, 1972, and March 19, 1973. The record reveals that Hankins received his first disciplinary writeup for an unreported absence in July 1972, when he did not report for work the day after his summer vacation. However, it is uncontradicted that Hankins sent word to his foreman through another employee that he would not be at work. In cross- examination, General Foreman Cross conceded that Respondent's absentee policy was satisfied when an employee notified Respondent of his impending absence through a coworker. On February 23, 1973, Hankins received a warning slip despite the fact that he reported his absence on both occasions alluded to by the warning. On May 1, Hankins reported his absence due to a sore throat. Underscoring the pretextuous nature of Respondent's claims, the record supports the finding that all of Hankins' absences were excused. The Board has found that where absences are actually excused the Employer's defense based on "bad attendance" is negated.5 The offering of a spurious defense, of course, supports an inference as to the unlawfulness of the real reason. Respondent's disparate treatment of Hankins is clearly demonstrated by the following incident. On May 23, Foreman Cross charged that Hankins was again late for work; Hankins was paid for only 7.9 hours, although his production record credited him with 8 timeclock hours. According to the credited testimony, Jessie Fowler, a fellow employee who worked on the machine next to Hankins, arrived at his work station after Hankins but had received a full day's pay and had not been docked for any tardiness. In sum the record reveals that Hankins was an active union adherent who was warned by Respon- dent concerning his union activities. In the midst of the Union's organizational campaign, he was sus- pended, discriminatorily docked pay, and eventually discharged. Respondent's contention that Hankins was discharged because of his attendance record is clearly spurious. Respondent admitted that absentee- ism was a problem among all employees. Hankins was not warned about tardiness until February 1973, after he testified at the earlier unfair labor practice hearing, although Respondent claims that Hankins had a tardiness problem since the commencement of his employment in May 1971. Hankins had actually complied with Respondent's absentee policy by properly notifying Respondent. Respondent offered shifting reasons for its decision to discharge Hankins, Texas Aluminum Company, Inc, 181 NLRB 73. e Welcome-Amencan Fertilizer Co, 169 NLRB 862 and the original reasons as well as the May 17 disciplinary notice were clearly contrived. Even assuming, arguendo, that Hankins was tardy on several occasions, this cannot obfuscate Respon- dent's determination to rid itself of the main union activist. It is well settled that while union activities do not insulate an employee from an employer's disciplinary actions, where an employee's union activities are the basis for his discharge, despite the existence of any lawful cause, the discharge is discriminatory and in violation of Section 8(a)(3) and (1) of the Acts While the record does reveal that Hankins was 7 or 8 minutes late on May 25, we find that Respondent seized upon this as a pretext for an otherwise discriminatory discharge. We therefore find that Respondent violated Section 8(a)(3) and (1) of the Act.7 THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As we have found that the Respondent has discriminated against employee Albert Hankins by suspending him on May 14, 1973, and by discharging him on May 25, 1973, for his activities on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act, we shall order the Respondent to offer him immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of pay he may have suffered as a result of this discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of reinstatement, less his net earnings during such period, in accord- ance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest at the rate of 6 percent per annum to be added to such backpay, such interest to be computed in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, I We do not herein reach the question whether Sec. 8 (aX4) has also been violated in view of the sufficiency of the remedy imposed upon our finding that Sec. 8(aX3) and ( 1) has been violated. GREDE FOUNDRIES, INC. Grede Foundries, Inc., Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from discouraging member- ship in or activities on behalf of the Union, or any other labor organization, by suspending, discharging, or in any other-'manner discriminating against its employees in regard to their hire or tenure of employment or any term or condition of employ- ment. 2. Take the following affirmative action which is necessary to effectuate the policies under the Act: (a) Offer to reinstate Albert Hankins to his former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make whole Albert Hankins for any loss of earnings he may have suffered by reason of the unlawful action against him in the manner set forth in the section of this Decision entitled "The Reme- dy„ (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Milwaukee, Wisconsin, copies of the attached notice marked "Appendix.8 Copies of said notice, on forms provid- ed by the Regional Director for Region 30, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suspend, discharge, or discrimi- 713 nate against our employees because they have joined or supported or will support International Molders and Allied Workers Union, AFL-CIO-CLC, or any other union, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. Since the Board found that we did so when we suspended and discharged Albert Hankins, WE WILL offer him full reinstatement to his former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make whole Albert Hankins for any loss of earnings he may have suffered by reason of the unlawful action against him. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist International Molders and Allied Workers Union, AFL-CIO-CLC, or any other union, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become, or refrain from becoming, members of the above-named or any other labor organization.- GREDE FOUNDRIES, INC. (MILWAUKEE) (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861. DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case was heard on October 2 and 3, 1973, in Milwaukee, Wisconsin, pursuant to charges duly filed and served,' and a complaint issued on September 6, 1973. The complaint presents questions as to whether the Respondent violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. At the trial, the General Counsel and the Respondent were represented by counsel and the Charging Party by its international representative. All parties were given full opportunity to examine and cross-examine witnesses, and to file briefs. At the conclusion of the trial, the Respondent moved to dismiss the complaint. Ruling on this motion was taken under advisement. It is disposed of as appears hereinafter in this Decision. The parties waived oral argument and on November 5, 1973, both the General Counsel and the Respondent submitted briefs. Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Wisconsin corporation, with its principal offices located in Milwaukee, is engaged in the operation of foundries at several locations. Only its plant located in Milwaukee is involved in the present proceeding. During the year preceding issuance of the complaint, a representative period, the Respondent sold and shipped goods valued in excess of $50,000 directly to points located outside the State of Wisconsin. Upon the foregoing facts, the Respondent concedes, and I find, that Grede Foun- dries, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Molders and Allied Workers Union, AFL-CIO-CLC, herein called Molders or Umon, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The Respondent has about 300 employees working on 3 shifts at its Milwaukee foundry. In 1972 the Union initiated an organizational campaign at this plant. In the spring of that year the Molders filed a representation petition. A Board-conducted election was held on June 9, 1972, which the Union lost. Thereafter the Union filed various unfair labor practice charges against the Respon- dent. Subsequent to a hearing on these charges, and after the issuance of a decision by Administrative Law Judge Stevenson, the Board issued a decision on July 26, 1973. Grede Foundries, Inc., 205 NLRB No. 12. The Board found therein that in 1972 at the Milwaukee plant, the Respon- dent violated Section 8(a)(1) of the Act: (1) by withholding improved health insurance benefits granted to employees at other nonunion plants, while at the same time advising the employees at the Milwaukee foundry that the reason they were not receiving the benefits was due to the Union's organizational efforts and the pendency of the representa- tion election; and (2) by soliciting grievances which it promised to, and did, rectify for the express purpose of discouraging employees from designating a union repre- sentative. In the spring of 1973, the Umon renewed its organiza- tional campaign at the Milwaukee plant. Albert Hankins, a molder at that foundry who had been active throughout the drive to organize the Respondent's employees and who was head of the in-plant organizing committee, was discharged on May 25, 1973.2 i he General Counsel alleges that this termination was for discriminatory reasons. This allegation is denied by the Respondent, according to whom Hankins was discharged for cause. B. Hankins' Work Record and Union Activity Albert Hankins was hired by the Respondent in May 1971 as a molder. His initial pay was $2.69 an hour, plus a mght premium. At the time of his termination in May 1973 he was earning $3.71 an hour. Hankins was an experienced molder who was skilled in his craft. During his employ- ment at the Respondent's foundry he worked on the pallet line as a member of a two-man team in multiple squeeze or two-board operations and also as a single squeeze molder.3 He was working in the latter classification at the time of his discharge. General Foreman Cross acknowledged that Hankins was a good worker, who was skilled in the difficult and physically exhausting work that a molder performs. Cross described Hankins as "an individual who could have been probably about the best squeeze molder we had." At the same time the general foreman criticized Hankins for being somewhat inconsistent in his production. On the other hand, Cross conceded that throughout the entire period of his employment, Hankins had received only two discipli- nary warnings with respect to his work. The first was issued on September 18, 1972, and the second on October 11, 1972. The first was for having left carbon rods out of several castings and the second was for having failed to put what were known as "chills" in a number of moldings.4 Both of these incidents occurred at a time when Hankins was suffering from a physical disability. As a result of the latter, on October 11, 1972, Cross put Hankins on a medical leave of absence for 3 days. Upon his return to duty Hankins had no further production problems. He credibly testified that during the rest of his employment period he did not make any further mistakes as to carbon rods or chills. Cross acknowledged that subsequent to October 11, 1972, there were no disciplinary writeups on the quality of Hankins' work. ' The original charge was filed on May 30, 1973, and a first amended 3 Elwin Cross, general foreman over the pallet line, described squeeze charge was filed on August 27, 1973 molding as the development of small steel castings on a machine that 2 Unless otherwise specifically noted, all dates that appear hereinafter squeezes the sand together to form the mold. are for the year 1973 4 A "chill" was a heavy piece of metal embedded in the molding sand GREDE FOUNDRIES, INC. 715 The foundry had a plant production board which each week listed the names of the best producing molders for each shift. Each day this carried the name of the highest producer among the single squeeze molders and the names of the members of the highest producing two-man team. When Hankins was working as a single squeeze molder his name appeared on this board from 2 or 3 days every week. When he and his partner, Sam Christopher, were working as a two-man team, their names appeared on the production board most of the time.5 Hankins was one of the first of the employees to join in the campaign to organize the plant. Some steps were taken to attain this objective in September 1971. According to Noble O. Blake, international representative of the Molders, however, it was not until about April 1972 that a determined effort began. It was at that time that Blake appointed Hankins as the head of a 10- to 12-member in- plant organizing committee, a post which he held through- out the balance of his employment. Union meetings were held at various places near the plant including George's and Rose's, a tavern that was located across the street from the foundry parking lot. The last named establishment was frequented by many of the Grede employees and some of the supervisors as well. Numerous union committee meetings were held there at times when the tavern was open to the general public. Blake and Hankins credibly testified that among the foremen who visited the tavern at such times were John Weber and Dave Sanderhoff. Hankins credibly testified that during the 1972 campaign he personally secured about 50 signed authorization cards from his coworkers whom he contacted at the tavern, in the plant locker room, and at various other places. For over a year prior to his termination Hankins was closely and publicly identified with the Union's attempt at organizing the Respondent's employees. On May 4, 1972, he attended a conference at the Board's Regional Office to discuss the pending representation election. Before he left the plant that day he informed his supervisor where he would be. At the conference in the Regional Office the Respondent was represented by its counsel. About a month later the Board-conducted election was held at the plant. William Grede, founder of the Company, spoke to the employees 2 days before that election, and endeavored to persuade them to vote against the Union. At the conclu- sion of his speech Hankins went to the platform and questioned Mr. Grede. It appears that Hankins was the only employee who asked any questions at that meeting. At the trial in the present case General Foreman Cross acknowledged that he first learned of Hankins' involve- ment with the Union at the time the employee questioned Grede at this meeting. In December 1972, and at the unfair labor practice hearing referred to earlier herein, Hankins appeared as a witness for, and testified on behalf of, the General Counsel. He was under subpena at the time and prior to leaving the plant for the hearing he informed General Foreman Cross where he would be. S The findings in this paragraph are from the credible , undenied, and uncontradicted testimony of Hankins and Christopher. H The quotations are from Hankins' testimony. 7 From Cross' testimony it appears that whereas Bell subsequently left In March 1973 the Union resumed its organizational efforts among the Respondent's employees. Hankins continued as head of the in-plant organizing committee and met frequently with Blake and other members of the committee, often at the tavern referred to above. Hankins testified, credibly, that during the ensuing weeks he passed out authorization cards to his fellow employees while in the plant, on the parking lot, and in George's and Rose's Tavern. On May 23, the Respondent received a letter from Union Representative Blake, wherein Blake informed Burleigh Jacobs, president of Grede, that Albert Hankins and Sylvester Harris had been part of the Union's in-plant organizing team since 1971, referred to reports of interfer- ence, restraint, and surveillance by supervisors, and reminded the Respondent of its obligations under the National Labor Relations Act. Hankins was discharged 2 days later. On the issue as to whether the Respondent had knowledge of Hankins' union activity there is one other significant incident. As found earlier herein, in September 1972, Hankins received a reprimand for having failed on one occasion to put carbon rods in a casting. Hankins testified that shortly thereafter, Willie Bell, his foreman at the time, came to his work station and told him that he (Bell) had attended a meeting "upstairs" where there had been talk among the supervisors about Hankins being a "pusher" for the Union. According to Hankins, in this conversation Bell cautioned him ". . . now everything .. . you do now you should do . . . as right as possible because . they're watching you."6 The Respondent conceded that Bell was a foreman during the period in question, but Bell was never called to deny or contradict the testimony which Hankins gave in connection with this incident.? Since Hankins was credible, his testimony as to the conversation with Bell is found to be an accurate summation of what his foreman told him. From the above findings as to the foregoing sequence of events and the credited testimony as to the remarks made by Foreman Bell in September 1972, I conclude that the Respondent was well aware of Hankins' participation in the organizational campaign for a long while prior to the termination of that employee. C. The Discharge of Hankins Hankins was discharged on May 25, 1973. According to General Foreman Cross, Hankins was terminated because of "his attendance [and] his tardiness."8 Cross further testified that the employee was not dismissed for such reasons as low production, refusing to obey orders, or doing defective or improper work. When asked the following questions, Cross gave the answers which appear below: Q. He [Hankins] was not terminated for doing defective or improper work? A. He was not terminated for that, but that was part of his record. supervision, at the time of the hearing Bell was still on the Respondent's payroll as a leadman in maintenance. 8 The quotation is from Cross' testimony. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Well, was that a consideration in terminating him on May 25, defective and improper work? A. No, I don't think so.9 Cross denied that the termination was related to Hankins' union activities. On about July 10, 1972, the Respondent posted a notice to all employees with regard to its absentee policy. According to this announcement all hourly employees absent without cause would be subject to the following penalties: for a first unexcused absence the employee would receive a written warning; a second unexcused absence would result in a 3-day layoff without pay; a third unexcused absence would be cause for discharge. On about March 19, 1973, the Respondent posted an amendment to its absentee policy which reaffirmed the above provisions and added the requirement that an employee absent for 3 days or more due to illness would have to present a certificate from his doctor. An employee who failed to return with such a document would be required to undergo an examination at the plant clinic before going back to work. Hankins received several disciplinary writeups for absence and tardiness. The first occurred in July 1972 when he did not report for work the first day after his summer vacation ended. According to Hankins, as the result of car trouble he was unable to return to Milwaukee until the afternoon he was to report for work. As the result of fatigue, he sent word to Foreman Roy Dickenson via Sam Christopher, a fellow employee, that he would not be at work that day. Christopher testified that he delivered the message and Hankins testified that the next day when he reported for duty Dickenson acknowledged having re- ceived it. At the same time, Hankins testified that the foreman told him that the reason for his absence was unacceptable. Dickenson thereupon wrote up a disciplinary report which described Hankins' failure to appear at work the preceding day as an "unreported absence." 10 In January 1973 Hankins was off for 2 days because of a strained back, but each day he reported the reason for his absence to the Company. In February he missed about 3 days because of an abscessed tooth, and, again, he notified the plant on each of the days he was absent. Nevertheless, on February 23, General Foreman Cross and Alvin Nodolski, personnel manager, held a conference with Hankins at which time the plant officials criticized the employee's absentee record. Hankins was warned that, unless his attendance improved, further disciplinary action would be forthcoming up to and including discharge. Hankins acknowledged that the supervisors discussed this matter with him and his signature appears on the warning slip that Nodolski prepared on this occasion. On about May 1, Hankins was absent for a day due to a throat infection. He called the plant to report his absence and the reason for it. Thereafter he consulted his doctor. Later that same morning, Personnel Manager Nodolski 9 In a response submitted pursuant to a prehearing order for a more definite statement the Respondent averred that Hankins was dismissed for "refusing to obey orders, low production, defective and improper work, disrupting and interfering with production by entering the plant on off time and visiting with employees during their working hours , unreported called upon Hankins at his home. According to Nodolski, he took this unusual step "to verify [Hankins'] illness." Hankins was then working on the first shift which began at 6:30 a.m. On May 14 he telephoned the plant at about 7 a.m. to report that he would be late. He could not recall the name of the individual with whom he talked. He arrived at the foundry about 8:35 a.m. Almost immediately thereafter he was summoned to a meeting with Cross and Nodolski at which he was given a 3-day disciplinary layoff and warned that if another instance of tardiness occurred he would be dismissed. When Hankins returned on May 17 he had a meeting with Cross, Nodolski, and Works Manager Frank Bren- dler. Sometime earlier he had requested a transfer to the second shift since that would make it easier for him to get to work on time. Nodolski had promised that this request would be considered. On the morning of May 17, when Hankins again asked Nodolski for a transfer to the later shift, the personnel manager responded in the negative. At the same time Hankins was given a disciplinary notice which read as follows: You have just returned to work after a 3 day disciplinary layoff due to your attendance. Your overall record, which has been recorded, shows that you have had disciplinary action or write up for tardiness, absenteeism, quality of work, including a 3 day layoff for insubordination, and using the meter during production while working, because of your over-all record you are hereby notified that any further infraction of any of these items will be cause for immediate dismissal and termination of employment. There was a line on the notice for the employee's signature. Nodolski entered a notation that Hankins refused to sign it. The employee testified that he did not recall having been asked to do so. The references in the disciplinary notice to earlier problems in Hankins' employment history covered certain incidents which, upon examination, did not reflect as seriously on his work record as might at first appear. The reference to a writeup for quality of work referred to the two occasions the preceding fall, discussed earlier, when Hankins left carbon sticks out of the molds and another instance when he left out chills. As found above, Cross acknowledged that these were the only two instances when the quality of Hankins' work had ever been the subject of a writeup and thereafter there had been no further incidents. The reference to a 3-day layoff for insubordination referred to an occasion in October 1971 when Hankins had had some trouble with a night-shift superintendent, one James Schneider. According to Hankins, this incident arose when he protested that the working conditions in his area were hazardous and unsafe in that a large hoist which operated immediately above his head was out of order and in danger of toppling on him. Hankins testified that while absences, repeated and persistent tardiness, and other improper conduct." 10 On cross-examination , however, General Foreman Cross conceded that it was sufficient if a coworker reported the impending absence of an employee as long as "the message gets through...." GREDE FOUNDRIES, INC. he waited for the maintenance crew to correct this situation, Schneider ordered that he keep on working and, when he declined to do so, because of the hazards involved, the superintendent told him that he was fired. According to Hankins, he was off work for less than 3 days when Personnel Manager Nodolski contacted him and asked that he return to work. The Respondent offered in evidence a disciplinary warning on this incident that purportedly was signed by Schneider. The latter was never called to testify. Hankins credibly testified that he first saw this disciplinary notice on May 17, 1973, when Cross and Nodolski summoned him to the conference described above. The reference to "using the meter during production" concerned an incident that occurred in September 1972. The Respondent had a pay plan whereby the molders worked on an incentive rate and at a day rate. When the molder was delayed because of circumstances beyond his control, such as shortage of materials or for some other reason, for that period he was paid at a day rate. At some point in 1972 meter clocks were installed at each molding station to record any such delays. If the meter was on at a time when the molder was engaged in a molding operation he would, in effect, be getting double pay. There followed a long period of confusion among the molders after the meters were installed as to when they were to be used. Hankins testified that during the incident in question he had a delay meter on for about 60 seconds when he was working. A written warning, dated September 14, 1972, was prepared and signed by Cross. According to Hankins the next afternoon Works Manager Brendler called a meeting that was attended by all the molders and the timestudy men. At this time, Brendler reviewed the use of the delay meters, and told the molders that there had been much confusion as to how they should be used. Hankins credibly testified that during the course of this discussion he protested having received a written warning for misuse of the meter when the whole incident had resulted from a misunderstanding. Hankins credibly testified that Brendler thereupon told Cross at this meeting that he should tear up the written reprimand that had been issued in his case. Hankins further testified , credibly, that he assumed that this had been done. Brendler was never called to refute or contradict this testimony by Hankins. The testimony of the latter as to this incident was persuasive. It is found to be a substantially accurate account of what occurred at the meeting in September 1972. On May 23, Cross charged that Hankins was again late to work. According to Hankins, he punched in between 6:20 and 6:25 a.m. He testified that after changing into his work clothes he and other employees reported to their molding stations about 6:30 to 6:36. Cross testified that regardless of when the molders punched in they were required to be in their work areas no later than 6:30 a.m. To enforce this requirement the Respondent had an individual, known as a checker, observe when each man arrived at his work area and note that time on the employee's production record for the day. Hankins' production report on this date credited him with 8 timeclock hours, but a penciled notation indicated that he was paid for only 7.9 hours. Hankins testified that Jessie 717 Fowler, a colleague who worked on the squeeze machine next to him, arrived at his work station after he did. Yet, according to Hankins' credible testimony , Fowler told him that he had received a full day's pay and had not been docked for any tardiness. On May 25, from his own testimony, Hankins was from 7 to 8 minutes late. When he arrived at the timeclock his card had been removed from the rack. A personnel clerk told him that Cross wanted to see him . A few minutes later when Cross appeared he directed Hankins to clean out his locker and leave. Hankins was terminated that morning. Concluding Findings The General Counsel contends that Hankins was suspended on May 14 and discharged on May 25 , 1973, for discriminatory reasons and in violation of Section 8(a)(3) and (4) of the Act. In support of that position there is evident the Respondent's strong union animus, Hankins' prominence in the Molders' organizational campaign, the Respondent's knowledge of that activity, and the warning to Hankins voiced by Foreman Bell in the fall of 1972 that the management considered Hankins a "pusher" for the Union and that from that time forward it behooved him to "do everything as right as possible because they" were watching him. (Emphasis supplied.) The Respondent contends that the sole reason for Hankins' termination was his record for tardiness and absenteeism. On the other hand, General Foreman Cross acknowledged that attendance was a problem at the foundry among all the employees . In an obvious effort to establish that Hankins' record on tardiness and absentee- ism was no worse than that of many other employees, the General Counsel subpenaed a large volume of timecards, including all of Hankins'. On the morning that the hearing opened, the Respondent supplied many boxes of timecards in response to this subpena. From their statement on the record during the early hours of the hearing , it was evident that counsel for the General Counsel had several staff members checking and analyzing these timecards. Howev- er, none of Hankins' timecards was found in the mass of data that was supplied. No satisfactory explanation for their absence was offered. At the hearing, and when on the stand, Personnel Director Nodolski acknowledged that Hankins' timecards and attendance records had been subpenaed. Other than to assert that at some earlier date these records had been turned over to the Respondent's central personnel office, Nodolski was unable to offer any explanation for the Company's failure to supply these records. The Respondent had no difficulty producing all the disciplinary reports that had been prepared during Hankins' employment, but it at no time offered a persuasive or convincing explanation as to why Hankins' time and attendance cards were unavailable for examina- tion by the General Counsel. The General Counsel did not seek to offer the attend- ance records of any employees other than Hankins. Consequently, there is no evidence that would establish whether there was any disparity as to the discipline meted out to Hankins as compared with the treatment accorded other employees with similar work histories as to tardiness 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and attendance. Whether such evidence was available and what it would establish, if offered, is left to conjecture. The decision herein, however, must be made on the basis of the present record rather than conjecture or suspicion. As found above, Hankins was absent or tardy on a number of occasions. He was given a written reprimand in each instance and as early as February 1973 he was warned that a discharge was in the offing. Thereafter he was admittedly absent on several other occasions, was subjected to a disciplinary layoff for tardiness in mid-May and when he was tardy again on May 25 he was discharged. It may very well be that Hankins' record in this respect was no worse than that of many other foundry workers. Cross' acknowl- edgement that attendance was a continuing problem at the plant would tend to prove that that was the situation. However, evidence as to the work histories of other employees and what disciplinary action the Respondent had taken, or not taken, as to them was never offered. Consequently, and notwithstanding the many questions raised by the Respondent's failure to supply the time records of Hankins, or to offer a convincing explanation as to why it was unable to secure them from the Respondent's central personnel office in response to the General Counsel's subpena, it is my conclusion that, on the record in the present case, the General Counsel has not estab- lished by a preponderance of the evidence that Hankins was terminated for discriminatory reasons. Accordingly, it will be recommended that the complaint be dismissed. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization , all within the meaning of the Act. 2. The General Counsel has not proved by a prepon- derance of the evidence that the Respondent violated Section 8(a)(1), (3), and (4) of the Act as alleged in the complaint. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended: ORDER" It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. I I In the event no exceptions are filed as provided by Sec. 102 .46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become Rules and Regulations of the National Labor Relations Board , the findings, its findings, conclusions, and order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.