Texberry Container Corp.

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texberry Container Corporation and Textile Workers Union of America , AFL-CIO-CLC. Cases 23- CA-5048, 23-CA-5053, and 23-CA-5055 March 24, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On September 16, 1974, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,'- and conclusions of the Administrative Law Judge, except as modified below. We find, in agreement with the Administrative Law Judge, that Respondent violated Section 8(a)(1) of the Act by informing employees, in effect, that their hours would be reduced if a union were selected. We do not, however, agree with the Administrative Law Judge that this is a case which was so lacking in serious impact that we should withhold the issuance of a remedial order. We regard as a serious violation of the Act the Respondent's threatening its employees with possible loss of benefits if they exercised rights guaran- teed to them by Section 7 of the Act. Accordingly, we find that it will effectuate the purposes of the Act to issue, as provided below, our usual remedial order for the violation found. AMENDED CONCLUSIONS OF LAW ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Texberry Container Corporation, Houston, Texas,_ its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Informing employees that their hours of work might be reduced if a union were selected. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the purposes of the Act: (a) Post at its business office and meeting places copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Re- gional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by it I immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. (c) Sign and mail to the Regional Director for Re- gion 23 sufficient copies of said notice, to be furnished by him, for posting by Texberry Container Corpora- tion, in places where notices to employees are cus- tomarily posted. IT IS FURTHER ORDERED that all allegations of the com- plaint which charge Respondent with unfair labor practices other than those found herein be, and the same hereby are, dismissed. 1. Respondent is engaged in commerce within the meaning of the Act. 2. Textile Workers Union of America, AFL- CIO-CLC, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By informing employees that their hours of work might be reduced if a union were selected, the Respond- ent has engaged in unfair labor practices defined in Section 8(a)(1) of the Act. MEMBER KENNEDY, dissenting in part: I agree with the conclusion of the Administrative Law Judge that no useful purpose would be served by the Board's issuing an order concerning this isolated incident. American Federation of Musicians, Local 76, AFL-CIO (Jimmy Wakely Show), 202 NLRB 620 (1973). I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibil- 2 In the event that this Order is enforced by a Judgment of the United ity unless the clear preponderance of all of the relevant evidence convinces States Court of Appeals, the words in the notice reading "Posted by Order us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 of the National Labor Relations Board" shall read "Posted Pursuant to a NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951) We have carefully Judgment of the United States Court of Appeals Enforcing an Order of the examined the record and find no basis for reversing his findings National Labor Relations Board " 217 NLRB No. 18 TEXBERRY CONTAINER CORPORATION APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell employees that their hours of work might be reduced if they select a union. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. TEXBERRY CONTAINER CORPORATION DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Houston, Texas, on July 23, 24, and 25, 1974,' based upon charges filed April 9, 17, and 19 and complaint issued May 22, with an order consolidating cases. The complaint alleges that Texberry Container Corporation, called Respondent, violated Section 8(a)(1), (3), and (4) of the Act by informing employees that should they select union representation their hours of work would be reduced and the plant, would close, by informing employees that Respondent would discharge an employee for engaging in union activity, by interrogating employees concerning union activities, and by discharging employees Anna Berry Mosley, Johnnie De- Vault, Alma Gene Waller, Melvin J. Davis, and Katherine Cash, because they engaged in union or concerted activities, and, in regard to Cash only, because she gave testimony under the Act. Upon the entire record in this case, including observation of the witnesses, and upon consideration of briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a corporation located in Houston, Texas, en- gages in the manufacture and wholesale distribution of plastic bottle. It annually purchases goods valued in excess of $50,- 000 for use in its business operations and receives these goods directly from suppliers located outside the State of Texas. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Textile Workers Union of America, AFL-CIO-CLC, called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 1 All dates and named months hereafter are in 1974, unless indicated otherwise. II. THE ALLEGED UNFAIR LABOR PRACTICES Facts and Discussion 59 In early 1974 the Union commenced organizing activities among Respondent's hourly paid employees. Organization- ally these employees primarily worked in the plastics depart- ment,, decorating department, and warehouse department. Components of the warehouse department were shipping and receiving, rail dock, truck delivery, and will-call, this last including a subdivision called cap department. On February 28, the Union filed a representation petition for an estimated 78 production and maintenance employees. Proceedings fol- lowed and on Friday, Aprils, an election was conducted over two voting periods between the Union, the intervening United Papermakers and Paperworkers, and a ballot choice of no union. During the overall organizing effort various employees solicited signed union cards, spoke to coworkers in support of the Union, and attended one or more of the approximately five preelection meetings conducted by repre- sentatives of the Union. Mosley was hired February 19 to work in the plastics department. She testified to signing a union card given her by DeVault, discussing benefits of a union with several cowork- ers of her department, attending two union meetings, making a telephone call on or about March 27 in the presence of Production Supervisor Paul Lytle during which she stated within his hearing that she would be attending a union meet- ing to which he made the exclamatory utterance "union meeting" and speaking out loudly in the presence of Paul Lytle to employees about to leave for a scheduled representa- tion case hearing in late March that they should "vote for the Union"' following which he told her she "better get to work." Mosley was absent from March 29 through April 4, after first informing supervison she would be off work to see a dentist. She appeared prior to her 7 a.m. starting time of April 5 but found her timecard pulled from the rack. Paul Lytle advised her to wait in the department office for Plastics Department Manager Bob Lytle. She did so and when he appeared at approximately 9:30 a.m. she was informed of being terminated for not calling in to explain her continued absence. She recalls having a dentist's statement with her at the time and offering this to Bob Lytle who rejected it saying she could go as he didn't need her excuse. DeVault was hired in August 1973 to work in the plastics department. She testified to soliciting approximately 20 signed union cards from employees of the plastics depart- ment, having many discussions with coworkers concerning the Union and attending three union meetings. DeVault re- called that on or about March 13 Paul Lytle observed her with a union card discussing the Union with coworkers while on breaktime, that on or about March 20 after she loudly stated that employees about to leave for the representation hearing should "stand up . . . for the Union" Bob Lytle looked at her strangely and that around March 25, while on breaktime with other employees who were talking as a group with Union Representatives Anthony Herman and Chuck Todd outside the plastics department area, Paul and Bob 2 I do not regard the discrepancy between these words and phraseology contained in Mosley's investigatory affidavit significant for credibility pur- poses. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lytle approached and nastily told the employees they had "no business out there at all." Prior to April DeVault had missed work periodically as a consequence of injury suffered by her brother. After working April 1, she left Houston late that evening by automobile accompanied by her mother and sister, to transport her brother to his home city following a medical checkup . She testified to experiencing car trouble during this trip and being unable to return to work until the morning of April 5. DeVault further testified that on the morning of April 2, around 7 to 8 a.m., she attempted to telephone the plant and report her absence, was unable to get through at that time but did reach Paul Lytle by telephone on April 4 and upon explaining her circumstances heard him respond that it was "fine" but she should come into the office first on Friday . Upon appearing the next morning she waited with Mosley and upon arrival of Bob Lytle was informed of being terminated because of her absence. Mosley and DeVault then went to the office of Company President Joseph Borden. They protested their discharges and in the course of ensuing conversation DeVault recalls Borden stating he was "downhearted" because certain em= ployees were wearing union badges and that Cash would be gotten "rid of" because he was sick and tired of her running off at the mouth. Mosley testified that Borden expressed being "very disappointed" when he saw a lot of "my friends ... wearing union buttons," that he had "the goods" on Cash who talked a lot and "wouldn't be around here too much longer," that he displayed a Bemis Company contract of the Union saying it was not any good , and that he asked for Mosley's, and inferentially DeVault's, inclinations about the Union and whether Mosley specifically had gone to union meetings. They then waited in Borden's office until he osten- sibly checked on whether other positions would be available for them . He returned with no further information and sug- gested they call him later . Eventually they received word from Borden that no other positions were found . This episode forms the basis for paragraph 7(c) and (d) of the complaint. Waller was hired in November 1973 to work in the plastics department. On March 19 she was transferred at her request to the warehouse department for work primarily in the cap subdivision of will-call. She testified to receiving union cards from two employees (one of them Devault) and signing one, attending three or four union meetings, and talking favorably about the Union with other employees. She recalls a discus- sion in late February with two admitted supervisors in which she associated having a union with earning higher wages. On the election day she wore a union button which elicited ob- serving comment from her supervisor, Louis Garcia. Waller testified that her duties in the cap department were to obtain, pack, and weigh caps. She performed moderate lifting, as heavier lifting was performed by coworker Henry Lister or other available male employees . When she felt assistance was needed she would request this of Garcia who sometimes ar- ranged it..She occasionally operated the Towmoter to trans- port products but believed that only some of the boxes han- dled were too heavy to be picked up. On two occasions prior to April 11, Waller informed Garcia she would have a doc- tor's appointment that date . She anticipated returning to work after the appointment but in fact did not do so and instead telephoned Garcia around 4 p .m. to state the doctor had been late and ask whether he still wanted her to come in at that hour. Instead, Garcia told her she could no longer work for Respondent because the work appeared to be too hard. Waller then telephoned Borden to protest the termina- tion but nothing came of the call. Davis was hired in April 1973 and worked successively in the will-call, rail dock and shipping and receiving subdepart- ments. In February Davis received authorization cards from Herman and solicited interest in the Union among his co- workers. He attended all union meetings held during the span early February through April 4 and on the election day wore a union button that was observed by company official George Kassos. At the second union meeting, held at the South Crest Fish Market near the plant, Davis observed Supervisor An- thony Perez and Warehouse Superintendent John Cardenas looking in the direction of this restaurant as they passed by or parked in their automobiles. On March 28 Davis was sitting in the car of union representatives immediately adjoin- ing plant premises and was observed in this activity by Kassos and John Cardenas. The following day while conversing with Herman on the side street adjoining the plant Borden pulled up in his automobile to a point about 15 feet away and glanced in Davis' direction . Immediately prior to his termina- tion Davis performed receiving duties unloading, stocking, and distributing incoming merchandise. On April 16 his supervisor, Richard Perez, observed Herman and other union representatives distributing leaflets near Respondent's prem- ises and asked Davis if he was "happy that my boys were out there" to which Davis simply replied "no." Around 4 p.m. that day Perez assigned Davis to move certain pallets in the receiving department and upon completion of this task then assigned him to load a Red Owl truck. Davis testified to asking if that wasn't the shipping department's duty and Perez told him to "shut up and do what you're told." Davis proceeded to load the truck and immediately upon comple- tion of this task was called into the office to be asked by John Cardenas what the trouble was between him and Perez. Davis answered there was no trouble and in response to a question stated he did not "curse" at Perez. Davis believed that co- workers Roy Griffin and Cleveland Guidry were favorable witnesses to the incident. He provided John Cardenas their names but they were not questioned as Cardenas contented himself to inquire of shipping department leadwoman Sandy McCoy what had happened. McCoy testified she first ob- served Davis and Perez conversing while she was inside the shipping department office and that moments later, while outside but immediately adjoining it, she sensed they were then engaged in verbal disagreement with Davis shaking his finger and giving the appearance of being "mad." She was subsequently questioned by John Cardenas and described this much emphasizing that while she had not heard words actu- ally spoken it looked like Davis had lost his temper. McCoy also recalls later informing Griffin and Guidry what she had related to Cardenas but denies adding that he prevented her from telling any further significant facts. Griffin testified that after the lunchbreak on April 16 he and Guidry were packing products for shipment . He overheard a conversation between McCoy and the driver of a McLean Freight Lines truck concerning a paperwork problem. McCoy attended to this problem at and around the McLean truck as it stood parked at the shipping area on the left side of the warehouse office. As this was occurring, Perez told Davis to perform certain TEXBERRY CONTAINER CORPORATION loading of the truck which was done. Upon completion by Davis he walked back past Griffin and Guidry remarking, "don't make me late" which was taken as a joke remark incidental to the nearness of quitting time. Griffin testified further that Perez, upon apparently hearing this, spoke to Davis asking what he meant by that or didn't he like that (the assignment). Without further exchange Perez then left re- turning a few minutes later with John Cardenas. Cardenas loudly asked Davis what the problem was but did not-enter- tain an answer, instead stepping off to the side with Perez. The two then spoke briefly to McCoy who later told Griffin that she was not given a chance to explain any opinion she had concerning Davis' attitude toward Perez. Guidry testi- fied that on Davis' last day of employment he (Davis) was told by Perez to load a truck. Upon completing this assign- ment a remark passed between Davis, Guidry, and Griffin that was "slang," .. jive" or joking in nature concerning being made late. Shortly thereafter John Cardenas appeared and seemed to question McCoy, who later informed Guidry she had attributed a nasty attitude towards Perez on Davis' part but was not given a chance to explain whether the feeling was mutual between those two. Cash was hired February 26 as a trimmer-packer in the plastics department. She testified to attending three union meetings and encouraging coworkers to sign union authoriza- tion cards as she had done. Cash served as union observer at the morning voting session on April 5. At a meeting con- ducted April 3 by Borden, Cash questioned whether his state- ment of employee benefits being negotiable anew with the Union was accurate as she had been informed otherwise upon inquiry to an office of the National Labor Relations Board. Borden disagreed with this understanding as it came from her as part of his general employee audience, stating such advice was idiotic. Cash was aware of the terminations of Mosley, DeVault, Waller, and Davis as they occurred over the period April 5 to April 16. She stated her concern to various cowork- ers that' Borden was firing black people and that in her opin- ion this "seemed to be a pattern" as it looked like Borden "might be firing all the blacks here." On April 17 she was summoned by Paul Lytle to the department office where Borden told her she was placed on suspension for spreading rumors. The discharges of Mosley and DeVault were each effected by Bob Lytle. He testified that when neither had appeared for work or given notification3 concerning their absence by Thursday, April 4, the day of the week on which new time- cards were placed, he considered them routinely terminated subject to the exception of a subsequently received extraordi- nary excuse for absence with nonnotification.' 3 DeVault testified that about a week before her termination Joseph Voytko became her new immediate supervisor Bettye Roberson, DeVault's sister and coworker in the plastics department, testified that she returned to the city by bus from the trip that originated in Houston at 11 30 p.m, April 1. Upon punching in the morning of Wednesday, April 3, she recalls notifying new Supervisor Voytko of events, that DeVault had to stay with the disabled car and that Voytko said "O.K." Voytko did not testify and there is no evidence this information was transmitted to either Lytle. a Bob Lytle testified that his practice concerning an absent employee who fails to call in is to pull the timecard after the second day, considering the employee conditionally discharged.,Should the employee eventually appear he entertains whatever excuse is given and might on rare occasion rescind the termination for a highly justifiable reason for absence without notifica- tion. He did not recall any instance of deviation from this general policy. 61 Bob Lytle further testified that he was involved with mat- ters concerning the morning portion of the representation election on April 5 and was unable to see Mosley and Devault until about 9 a.m. At this time he informed each they were terminated. He denied that Mosley offered a dentist's state- ment or that any notification concerning DeVault's absence from work was received after April 1. 'Louis Garcia effected the discharge of Waller with the approval of John Cardenas. Garcia had complained to Car- denas of Waller's apparent inability to perform heavy han- dling and stacking in the cap department. Garcia testified that on two or three occasions Waller complained about work being too heavy, to which he would tell her to leave it undone. During the several weeks she worked under his supervision, he periodically complimented her, generally considering she was "nice" and "obeyed" him. Nevertheless, approximately a week before her termination he "had it in mind" to dis- charge her. Garcia testified to doing so when Waller tele- phoned late in the day on April 11. He told her then simply to remain away as she was relieved of duties because the job was getting too heavy. John Cardenas effected the discharge ofDavis after speak- ing with Perez, Davis, and McCoy later in the afternoon of April 16. Cardenas testified he was influenced by an incident approximately 3 weeks earlier in which he understood Davis had seemingly resisted orders of supervision.' Perez had gone to ,Cardenas to report that Davis had resisted an order to load a truck, had intimated Perez could be terminated as occurred recently with another supervisor and had mumbled loudly at the time of receiving the loading assignment in a manner that seemed to be cursing.6 Borden effected the suspension of Cash while directing an investigation of reports reaching him that she had stated Respondent was appearing to deliberately fire only black employees. The information originated with advice given John Cardenas by employee Rosemary Cardenas which the former relayed to Borden. The investigation included an as- signment to Bob Lytle to confer discreetly with several female employees believed to have overheard such remarks by Cash. Bob Lytle questioned Rosemary Cardenas, Agnes Pace, and Brenda Smith, each of whom told him that Cash made a statement essentially to the effect that Respondent was "fir- ing all the blacks." He also later questioned employee Elaine Walker upon her return from vacation on or about April 22 and obtained the same information.' Consideration of this case must occur in a framework 5 Perez testified to the earlier incident dating it on March 16 at which time he gave Davis an assignment to sweep a warehouse section and was met with temperamental disagreement. It apparently occurred 1 week later as Davis' personnel record contains an entry for "talking back to supervisor" which is dated March 23. I do not regard the discrepancy in dates significant for credibility purposes. 6 Davis testified that he had once complained to Cardenas about Perez calling him "nigger." Cardenas denies receiving such a complaint. ' Bob Lytle testified he did not question employees of his department other than those named for investigative followup even though he had no recollection why he specifically contacted Elaine Walker I conclude Elaine Walker was among those named by Borden for contact since her knowledge on the subject apparently became available to Respondent's supervisors through leadwoman Beverly Antoine Borden testified he made no further effort to inform Cash of her employment status since the charge in Case 23-CA-5055 expressly concerned the subject , alleging a suspension "and- /or" termination. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD larger than the Union's organizing campaign. From and after late February; when a representation petition was filed, the fact of substantial employee support for such an objective was openly known. This event had little bearing on business oper- ations including purchasing, production, sales, and distribu- tion, all of which would command the continued attention of top management and department heads. The essential issue is what, if any, effect it had on the further important function of employee relations as manifested by Respondent's dealings with its employees. An evaluation of this issue turns primarily on the testimony presented, and secondarily on deductive understandings flowing from the comprehensive personnel records covering an appropriate 1-year period. General Counsel's case rests on the doctrine of pretextual discharges occurring against a general background of claimed knowledge that certain employees favored the Union, the Respondent harbored an impermissible degree of opposition to the Union, and that specific acts in violation of Section 8(a)(1) are shown. As to the general tenor of this case, I cannot accept the contention Respondent was hostile toward the Union or exhibited animus as those terms are germane. During the critical months of March and April, conversa- tions between employees relative to the Union and attendant solicitation of authorization cards were essentially ignored by Respondent's supervisors. To the extent that employees min- gled openly with union representatives at and near plant premises and otherwise casually voiced support for union purposes, this reflects a lack of concern for retaliatory em- ployment action. Respondent had experienced organizing campaigns before and, in this instance, mounted traditional opposition specifically including a mass meeting of employees on April 3 to strongly express opposition toward unioniza- tion. Occasionally, specific flaws were attacked as concerning a supposedly assured wage increase from unionization and a specific contractual provision in effect between another em- ployer and the Union. Overall, however, supervisors dis- played little interest in specific employee activities! On one occasion, employees congregating around union representa- tives were directed to return to work and I accept that Super- visors Anthony Perez and John Cardenas observed an abnor- mally- large number of employees at a restaurant in what, under the circumstances, would reasonably lead such super- visors to conclude was a union meeting. On the other hand this meeting place was near the plant in a general commercial district and General Counsel makes no claim unlawful sur- veillance was occurring. Each of the discharges occurred as a result of claimed employee misconduct. The profile available for overall per- sonnel records (G. C. Exh. 2) is one of nonuniformity in disciplinary action and strongly suggestive of individual treatment for individual cases. In some instances employees were discharged summarily while in other instances extreme leniency was shown. Considering Respondent's size, the fact that both the plastics department and warehouse operations involved unskilled or slightly skilled occupations with high employee turnover and the absence of any strongly structured personnel management system, I conclude and believe that disparity shown from the records is industrially typical. 8 Borden admitted having seen many employees wearing Union buttons (Tr 526) Multiple or closely timed discharges were not unprece- dented. On June 21, 1973, employees Lupe Longoria and Carlos Reyes were each terminated for "poor job perform- ance." Gary Tucker was terminated September 25, 1973, and Richard Castillo was terminated October 3, 1973, for re- corded reasons of "poor performance and attitude" and "un- satisfactory job performance," respectively. Operating super- visors have more to do in the course of a working day than show concern for whether personnel records are repositories for each significant event or communication involving em- ployees of their department. The records here in evidence have a ring of genuineness that picks up well before the union organizing commenced, continues through the critical March-April months and, although it might be argued as self-serving, extends even into more recent times. There are numerous instances of recorded discharge based on job per- formance, attitude, apparent theft, drunkenness, and other job derelictions. The matter of employee attendance, an important branch of this case, cannot be approached without drawing attention to the components of this subject. Attendance can become a problem from the standpoint of whether sporadic, chronic, or extensive. The subsidiary question can be whether notice was given before an absence from work occurred or whether an absence from, work exceeded the scope of such notice as was given. In either case, it is typically true that justification in terms of personal or unavoidable circumstances will be con- sidered by most supervisors. Respondent contends it has rule or policy whereby em- ployees subject themselves to discharge for being absent from work 2 consecutive days without notice.9 Bob Lytle further refined his description of the rule by, tying it in with Respon- dent's Thursday through Wednesday workweek. He testified to considering employees ordinarily conditionally terminated upon the expiration of their second day of unreported absence from work, claiming that as a matter of convenience this was often carried into Thursdays since that was the day new weekly timecards were placed in the rack. For tentative reasoning purposes it is well to look at what in`fact occurred relative to employees terminated for reasons based on attendance over the representative 1-year span that is in evidence. It is first of all apparent that such cases fall into three broad categories. One is-the instance of employees being considered conditionally terminated after the second day of unreported absence; another is where such conditional termi- nation was associated with the date following the third day of unreported absence, and a final instance is simply special handling totally foreign to the claimed "rule" or policy." Furthermore, a pattern is shown whereby a 3-day rule was used more typically in 1973,10 while a 2-day rule was, as 9 Borden described it so, while John Cardenas and Bob Lytle, each of them dealing on a more or less daily basis with the subject, describe it as "usually" and "generally" the case, respectively. Roberson understood she was to report if off work; DeVault and Cash each understood from cowork- ers that they should call in within the third day of absence, and McCoy was unaware of any rule on the subject. 10 In 1973, and respecting only employees discharged for recorded reason associated with failure to report for work, the effective date entered was the fourth day of unreported absence for Louis Munoz, Albesa Pena, Joseph Cole, Wilbert Kinnerson, Judy McKenzie, Adela Gonzales, Abe Johnson, Ronald Sepolio, and Joseph Harmon (Names here and in footnote following are merely illustrative on the point-not a complete listing). TEXBERRY CONTAINER CORPORATION Respondent contends, used more typically during 1974.11 Another proper area for examination is whether, as claimed by Bob Lytle, Thursdays were in fact chosen as the personnel record date of conditional termination . Of the 16 employees terminated from the plastics department during the last half of 1973 for failure to report to work, 12 were discharged on a Thursday. Arithmetically, this means that Thursday was the chosen date three times as often as for all other weekdays combined . Of the 19 employees terminated from the plastics department during 1974 (through May 31) for failure to report to work, the personnel record date of conditional termination was on a Thursday in eight instances. While a significantly lower ratio of Thursday to other week- days exists for 1974 as compared to 1973, the essential thrust of records in this regard substantiates Respondent 's general claim that supervisors at least tended to follow an absentee- ism policy. 12 Although the fairness of not providing full communication to employees might be questioned, I attach little significance to the limited understanding of such policy existing among employees. Of greater importance is the fact that terminations for failure to report for work, or the synon- ymous absence without notice, were commonplace at all times. The tone of Respondent 's general employee relations and its form of reaction to the Union 's organizing compaign is necessarily related to allegations of the complaint that invoke Section 8(a)(1). Respecting paragraph 7(a) and (b) of the complaint, Guidry testified that at a time around late Febru- ary or March he was approached by Warehouse Supervisor Joe Cardenas and told that if a union got in the plant Borden would close it down or only permit employees to work until 2 p.m. Guidry testified further that he only smiled in response to the statement -but said nothing. Joe Cardenas testified that while the organizing campaign was underway employees un- der him asked concerning what hours of work would be if the Union won the election. He recalls understanding that "they would-cut the hours or something like that" and telling em- ployees that while he "didn't know," they (hours of work) "might be raised tip" or "might be cut." He testified further that "nobody" had told him hours would be cut and that he never stated the plant would close should the Union win the election. Of the five persons whose testimony concerns these allegations, I discredit Guidry, Mosley, and DeVault. Guidry was a highly suggestible witness who displayed a confused, unimpressive recollection . Testimony of Mosley and DeVault was mutually contradictory in part and generally implausi- ble, but particularly so as to their conversation with Borden in his office the morning of April 5. I am persuaded that any matters relating to the Union that were discussed in that conversation arose from injection of the subject by Mosley and DeVault as freshly discharged employees and that re- sponses made by 'Borden were of a neutral conversational nature devoid of the threatening or interrogative nature that 11 In 1974, and respecting only employees discharge for recorded reason associated with failure' to report for work (exclusive of Mosley's and De- Vault's cases) the effective date entered was the third day of unreported absence-for Walter Metcalf, Sam Carter, Darlene Scott, Erlene Ray, Mary Cuellar, and Marla Bordelon. 12 The presence of written policies concerning safety, telephone usage, holidays, and leave of absence does not negate existence of a less formal policy for employee attendance. 63 has been ascribed . In summary of this point, I credit his denial of revealing an intention to discharge Cash" or of questioning Mosley or DeVault concerning their own union activities. There remains the testimony of Joe Cardenas as to which Respondent argues "no violation " has been established since he ". . . advised them [employees under : his supervision] that he did not know what effects the Union's organizing of the Company would have on the hours of work." Upon close reading, this is not the thrust of Joe Car- denas' testimony. On the contrary, alluding to inquiries from employees "that worked under" him, he testified that al- though "nobody" told him they thought hours at work would be reduced he nevertheless "... told them I didn't know, they [hours] might be raised up or it, might be cut, I didn't know." I believe this is an impermissible posture for this supervisor to have left the subject since for no particular reason that Joe Cardenas himself could assign he deliberately erected the possibility of reduced hours of work as a potential consequence of unionization . The "didn't know" qualifica- tion lessens the ominousness of the threat as a matter of ordinary discourse, but not to such a degree that the utter- ance may be entirely excused . 14 From this I conclude that evidence as a whole supports the allegation in paragraph 7(b) of the complaint. The remaining allegations of paragraph 7 fail to be established as a matter of substantial evidence. The discharges of Mosley and DeVault are necessarily in- terrelated for purposes of evaluation and reasoning. If pretex- tual in nature, it means Respondent applied its claimed ab- senteeism policy artificially and with deliberate unlawful design to rid itself of both individuals. If not pretextual, it means they were each caught up in the rather high attrition rate of both the plastics and warehouse department where little toleration of 2-to-3 day unreported absence was shown. On the initial question of whether Respondent could even have possessed discriminatory intent toward Mosley and De- Vault, I am satisfied it sensed each to be a union adherent from their unconcealed conversations with coworkers and union representatives. Of greater significance, however, is the fact that no evidence is present demonstrating the type of animus as to make the discharges highly suspect . Mosley's case is particularly weak as there was no word from her for a period of 4 consecutive days." DeVault's case is complicated by her testimony of tele- 13 It defies belief that Borden would remark to having "the goods" on Cash at`the point in time of April 5 as her claimed rumor spreading was based on an originating event of that very date, let alone allowing for the additional days taken up with Respondent's investigation 14 While Guidry's testimony does tend to dovetail with my conclusion, I adhere to discrediting his recollection in this regard He was not under the supervision of Joe Cardenas and although the two would speak regularly, I am convinced Guidry heard of Cardenas' remarks from others and is not testifying to a matter of his own personal knowledge. The factual finding is, therefore, premised on the testimony of Joe Cardenas alone 15 I discredit her testimony that she tendered a dentist's statement to the Lytles on April 5. As stated , her testimony lacks veracity and no reason was advanced why even the identity of the dentist was not shown, let alone existence of an excuse prepared by him for Mosley's use at that point in time Further, General Counsel erroneously argues that during 1974 Agnes M. Pace "is the only probationary employee other than Mosley who was dropped from the payroll for lack of attendance " Contrarily such occurred with regard to Ruth Rizo, Lois Brantley, and Julian Michael Clary Addi- tionally the 2 week extension of probation for Pace (while not for Mosley) had precedence nearly a year earlier when the probationary period of David Kirkpatrick was similarly extended. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phoning Paul Lytle on April 4, and by uncontradicted tes- timony of Roberson that she made a report of absence on DeVault's behalf to Voytko the morning of April 3. As an admitted agent of Respondent, this information must be im- puted to its supervisory hierarchy; however, a neutralizing effect exists from her precise testimony of estimating De- Vault's return to work on Thursday "if she got the car fixed." 16 It does not profit General Counsel' to prove Re- spondent was harsh or abrupt with DeVault. On March 22 she had received a recorded warning for "goofs off and there were ample prior instances where Respondent had ter- minated employees for mixed reasons based on absenteeism and job performance or attitude.17 General Counsel further argues the circumstances of dis- charging Mosley -and DeVault were manipulated to exclude them as voters in the representation election occurring that morning. I find no merit to this contention, noting an after- noon voting period was also available to them. No basis exists to conclude that either were treated in an essentially different manner from the frequent terminations for this most common of reasons.'$ Waller transferred into the will-call subdepartment at her own request during March." At a time no later than April 5, Respondent had awareness of Waller's support for the Union through her wearing of a button. The same was true, however, of will-call employees Godfrey and Lister. Tes- timony identified Lister as available for heavier tasks. His personnel record shows sustaining occupational back injury on May 2, an event lending credence to Respondent's asser- tion that physical strength was necessary in handling caps. The composite of testimony by Waller, Godfrey, and Garcia is to the effect that in this small operation Waller, more than anyone, was unable to physically perform tasks required in terms of lifting and handling. Garcia is a minor supervisor of crudely simple outlook, including a willingness to compli- ment Waller on her cooperative attitude without abandoning 16 Gratuitous hearsay associated with this testimony was objected to successfully. Without further elaboration on this exchange between Rober- son and Voytko, in which he responded "o k." to the reason given, I do not believe Bob Lytle, as Respondent's chief actor in this regard, was foreclosed from this established practice of considering overall circumstances upon reappearance of an absent employee. DeVault's failure to appear for work on Thursday, therefore, reasonably solidified Bob Lytle's decision to apply the "failure to report to work" principle and to terminate her on the condi- tionally effective date of April 4. 17 I do not feel it is reasonable to expect the Respondent's supervisors would write down each and every consideration in their mind while making an ostensibly routine discharge. DeVault's reprimand was recent and rea- sonably within the mind of Bob Lytle as he had recorded it. Employee Angie Martinez was reprimanded similarly on the same date. An example of termi- nation for failure to call in when absent, coupled with poor job performance, is that of Michael Standifer on November 2, 1973. 18 General Counsel argues that use of the notation "terminated" is sus- pect Contrarily it was a term randomly chosen by Bob Lytle to record absenteeism discharges of Jose Cano and Larry Rodrigues in 1973 (also Robert Ragan and Stella Garza in 1974) 19 Her personnel record shows an hourly rate increase to $2.25 effective March 21. Henry Lister, also employed in will-call (specifically as a "cap man" since March 5), received a similar wage increase that same date. I attach no significance to the fact that Waller received this pay increase 3 weeks prior to her termination, as the assigned reason was based on claimed failure to perform duties adequately over the subsequent span. Relative to the discharge itself, I also attach no significance to employee Godfrey's testimony that Garcia stated that he would deduct pay from Waller for failing to return to work a portion of the day on April 11. dismay at her limited abilities. I am satisfied that this dismay translated into complaints-to John Cardenas, resolved by a joint decision to terminate Waller. Her case does not differ from terminations by Respondent generally and is not shown to have been associated with her limited support of the Union. Unlawful motivation toward her is not shown with the testimony of her conversation with Supervisors Cortez and Mahoney presenting nothing more than privileged ex- pression of views by them. Davis' discharge must be decided on the basis of whether a particular incident constituted a last straw with Respond- ent, or was simply seized upon as a pretext to rid itself of an employee known to have favored the Union. As to the inci- dent itself, I discredit the testimony of both Griffin and Guidry; the former on grounds he was not a favorably im- pressive witness and was self-contradictory, and the latter on stronger grounds that his testimony, as a whole, was highly implausible. I credit McCoy to the extent she observed Davis acting as though he were mad, and I credit Perez to the extent Davis responded to a loading assignment in temperamental manner. Actually Davis' own testimony, taken in conjunc- tion with his employment record, suffices to provide Re- spondent sufficient reason to discharge absent evidence of unlawful motivation. The response "isn't that the shipping department's duties?" was too perilous an utterance for one formally warned December 7, 1973 ("bad conduct"), January 24, when Garcia complained he "doesn't pay attention," and March 23, for "talking back to supervisor" with a notation of record that should it happen "again" his employment would be terminated. There is no indication Respondent acted without ordinary business justification in Davis' in- stance. It is one thing to jest with supervision but quite another to resist orders to the point of management exaspera- tion. There is ample showing that others have been dealt with sternly for similar conduct.20 The case of Cash involves the discharge of the designated union election observer shortly after so functioning. The close scrutiny such action ordinarily involves fails to reveal evi- dence of discrimination in this regard. Cash was a probation- ary employee at the time and contrary-to General Counsel's characterization of her utterances as "casual comments," they were, in fact, by her own admission, pointedly accusatory.21 Respondent's action concerning Cash must be viewed in the total context of events attributable to her re- marks. In this regard, it is established that several employees 20 Leon Adams was terminated May 17 for "hollering and talking back to supervision" against a disciplinary record background of several warnings extending over the year and one half of his employment Keith Butler was terminated June 6 over the signature of Richard Perez who recorded defici- encies including "doesn't cooperate with supervisor." Although Davis had an entire year of employment with Respondent there is no reason to dis- believe he lost the original satisfactory characteristics of his early months and, following an attempt at rehabilitation, was terminated for a precipitat- ing and justifiable reason His situation closely resembles that of employee James Johnson, who had uneventful employment from May 23, 1973, but was subjected to two recorded reprimands in early 1974 followed by termi- nation upon complaint of his immediate supervisor on February 26 21 To say that it "looks like" Respondent was firing all black employees is by common vernacular a definitive opinion to that effect, reasonably expected to stimulate such further interchanges from which rumors are born. More significantly, the stated opinion that a flurry of black employee terminations "seemed to be a pattern" unwittingly invoked a core concept of statutory fair employment protection. (42 U S C. § 2000e - 6(a)) TEXBERRY CONTAINER CORPORATION were specifically aware of the remarks" and they had in- vidiously spread to the extent that a group of black employees sought reassurances. At the moment John Cardenas con- veyed his report of Cash's remarks to Borden, a serious prob- lem was suddenly thrust up for any ordinarily prudent man- agement of a factory operation having over 50-percent employees of the group to which such rumor concerned.' Cash's prompt suspension upon initial verification of facts was a reasonable step. The failure to further specify her em- ployment status is insignificant since a charge on her behalf was promptly filed and served. It is specious to analogize this rumor to an official protected complaint of employment discrimination." A final point lending authenticity to Re- spondent's action concerning Cash is a notation on the per- sonnel record of Shednck Williams, an employee hired May 8, 1973, and terminated July 20, 1973, by Bob Lytle for failure to report for work. On this record an entry dated June 6, 1973, apparently made by John Cardenas, states: Got complaint about Shedrick's job performance and a comment he made about not wanting a black man telling him what to do. He denied all. This type of attitude won't be tolerated again. Overall, I find that Respondent reacted to the organizing campaign essentially with a "business as usual" posture. Many employees whose identification with the Union was equal to those here in litigation have remained employed 22 I credit Elaine Walker's testimony concerning what she heard Cash say on the subject, and further credit Cash's testimony that on April 5, the day of the election in which she served as union observer, she spent her lunch hour in the automobile of Herman Accordingly, as possible from Walker's testimony, the time at which she overheard this was the afternoon break of April 5 23 Formal allegations on this subject are made under penalty of the Crimi- nal Code. 42 U.S.C § 2000e - 5(b); 29 CFR 1601.8. 65 without incident. High attrition, including many termina- tions, are common as to Respondent's work force and it is even shown that Supervisor Richard Alcala was discharged April 9 after being warned concerning interest in his work and attendance. I find Mosley, DeVault, Waller, Davis, and Cash were each discharged for cause without a showing by substantial evidence that considerations of their known inter- est in, and support for, the Union were involved. To hold otherwise on the record of this case would simply insulate union adherents from discharge, a notion that has never been the law. The 8(a)(4) allegation concerning Cash, based on her telephone call to an NLRB Regional office and dialogue with Borden on the point, is utterly without merit. CONCLUSIONS OF LAw 1. Respondent, by informing employees their hours of work might be reduced if a union were selected as collective- bargaining representative, has engaged in unfair labor prac- tices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 2. Respondent has not violated the Act in any respect other than that specifically found. REMEDY The utterance of Joe Cardenas was equivocal in nature and although of coercive effect has not been shown to represent Respondent's actual intention . It is speculative as to how many employees heard the remark and I see no useful pur- pose being served by remedial action now concerning this isolated incident. Accordingly, I decline to recommend the posting of a notice. Cf. Middletown Manufacturing Company, Inc., 141 NLRB 234 (1963); Howell Refining Co., 163 NLRB 18 (1967). [Recommended Order for dismissal omitted from publication.]