Litton Systems, Inc.

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Guidance & Control Systems Division, Litton Sys- tems, Inc.' andInternational Association of Machi- nists and Aerospace Workers, AFL-CIO. Case 31-CA-4085 March 31, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On November 18, 1974, Administrative Law Judge Henry S. Sabin issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting 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 brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. The Administrative Law Judge found, and we agree, that threats of job reprisal against Albert Nanez made by Supervisor Stephen Victor during an April 15 meet- ing with the employee were violative of Section 8(a)(1) of the Act. Though our dissenting colleague apparently views Supervisor Victor as a latter day Diogenes en- gaged in some disinterested search for honesty' and truth, the record is otherwise. Thus, for example, the April 15 conversation between Victor and employee Nanez was not a casual conversation stemming from a chance encounter, but rather a meeting arranged by Victor in his office ostensibly to explain to Nanez why the latter had been,bypassed for promotion. Victor ad- mitted telling Nanez at the beginning of this interview that he had earned a promotion and could still get a promotion. Victor also told Nanez that he, Victor, would "continue to work to get you a promotion." Having made it clear to Nanez that his hopes for promotion rested largely on the continuing good will of his supervisor, Victor turned the discussion to the hear- ing scheduled to resume on April 30, and to the tes- timony that Nanez would give at that hearing. Victor complained at length that Nanez' testimony, which Victor had reason to believe would contradict the Com- pany's version of events, was "bugging" him and he "had to know" how Nanez would testify. In fact, as Victor carefully pointed out to Nanez, if the latter testi- fied in accordance with the statement he had given the General Counsel, "you are technically calling me a liar and I am the guy that's got to go to bat for you and if i The name of Respondent appears as amended at the hearing you are going to call me a liar, then I am not going to go out and put you in for promotion or anything else." Thereafter, Victor warned Nanez that he would not be surprised if Nanez was not working for the Com- pany within a year if he did not "tell the truth as you know it like you have told me and [the company attorney] Mr. Cappadona. " (Emphasis supplied.) Under these circumstances we are at a loss to under- stand how our colleague can seriously contend that this case involves nothing more than an employer's right to urge his employee to "tell the truth" on the witness stand. Nor can we agree with the simplistic conclusion that any statement Nanez may have made in response to Victor's heavyhanded interrogation should be con- strued as an admission that his testimony against the Company would be a lie. Rather, we would conclude that any such statement, if in fact made, was merely the employee's attempt to mollify his supervisor and to extricate himself, if only momentarily, from a difficult situation.2 I Finally, we disagree with our colleague's contention that although we adopt the Administrative Law Judge's conclusions we are actually finding a violation dif- ferent from the one he found. The Administrative Law Judge, in finding a violation predicated on Victor's comments to Nanez, specifically relied on Saunders Leasing System, Inc., 204 NLRB 4,48 (1973), wherein the Board concluded that an employer who puts an employee under fear of job reprisal if he fails to testify in accordance with the employer's version of the truth not only interferes with the integrity of the Board's processes but also restrains and coerces the employee in the exercise of his Section 7 rights.3 Here, as even our colleague must ultimately ac- knowledge, Victor's "instruction" to tell the truth was combined not only with the phrase "as you know it like you have told me and Mr. Cappadona" but with ex- plicit threats and warnings as to what would happen to Nanez if he failed to so testify. Few employees would miss the point of such an "instruction." 2 Of course, it is not at all certain that any such statement was made. Nanez denied it and although the Administrative Law Judge generally credited Victor that he did not order Nanez not to testify at all he did not make specific findings as to other details of the April 15 conversation. Moreover, it is worth noting that the Administrative Law Judge specifically refuted any suggestion that Nanez was fabricating and instead observed that honest differences may be expected when participants in a conversation testify from memory as to what they understood or thought they understood other participants had said or implied during that conversation 3 In Saunders the Administrative Law Judge also pointed out: "The Act protects the employee against discrimination because he gives testimony under the statute irrespective of whether the employer believes his tes- timony to be false or whether the ultimate proof sustains the accuracy of the testimony " 204 NLRB 448 at 452-453 217 NLRB No. 34 GUIDANCE & CONTROL SYSTEMS DIV., LITTON 209 ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent 'Guidance & Control Systems Division, Litton Systems, Inc., Los Angeles, California, its offic- ers, agents, successors, and assigns, shall take the ac- tion set forth in the said recommended Order. MEMBER KENNEDY, dissenting: Unlike my colleagues, I refuse to hold that an em- ployer contravenes the policies of our Act by urging an employee to "tell the truth" at a forthcoming Board hearing. Accordingly, I dissent from their finding that Respondent violated Section 8(a)(1). The sole violation found by my colleagues is predi- cated upon an April 15, 1974, conversation between employee Albert Nanez and his supervisor, Stephen Victor. The conversation pertained to a conflict in writ- ten statements Nanez had made to Respondent's coun- sel and an investigator for the Regional Office about the discharge of David Fatool. When the hearing had origi- nally opened a few months earlier in February, Victor testified on behalf of Respondent. Two days before Victor's testimony, Nanez had given an affidavit to Respondent's attorney (Cappadona) which supported Victor's recollection of the events culminating in Fa- tool's discharge. After Victor had completed his tes- timony, Nanez gave a second affidavit to Respondent's attorney and an affidavit to the General Counsel, both of which were inconsistent with his earlier affidavit and at variance with Victor's testimony. Although Nanez did not testify in February, the General Counsel made an offer of proof-in Victor's presence-as to what Nanez would say if permitted to testify. The offer tracked the affidavit which Nanez had given to the General Counsel rather than the affidavit previously given to Respondent's counsel. The offer of proof was rejected and the hearing closed. The Board thereafter granted a motion to reopen filed by the General Counsel and directed that the hearing be resumed for the purpose of taking additional testimony, including that of Nanez. It was in contem- plation of the resumption of the hearing on April 30 that Victor told Nanez to tell the truth. Victor testified that, during the course of their dis- cussion, he asked Nanez whether he (Nanez) was aware of the fact that the Board hearing had been reopened. a In contrast to his credibility findings regarding Nanez, discussed infra, the Administrative Law Judge found Victor to be "an honest and forthright witness" who led him to "place considerable credence upon [his] testimony as it is believed he was impelled to tell the truth regardless of what conse- quences might eventuate." When Nanez indicated that he was not, Victor ac- knowledged that: There is one thing that has really been bugging me about this thing and I've got to know that's going to happen. I have got to know your side of the story. Victor then described the content of the General Coun- sel's offer of proof made at the hearing and stated: [I] knew right away that that was contrary to what you had told me and it was contrary to the affida- vits that you had given to the company lawyer, Mr. Cappadona. Victor then pointed out the discrepancies between the three affidavits given by Nanez. With reference to the affidavit given to the General Counsel, Nanez al- legedly replied: Yeah, I had been a fool to go down there and testify and tell a lie.5 [Emphasis supplied.] Given this acknowledgment, Victor then candidly stated: Well that's the only thing I am worried about, because if you go down to the courtroom and lie, you are technically calling me a liar and I am the guy that's got to go to bat for you and if you are going to call me a liar, then I am not going to go out and put you in for promotion or anything else. At this point in the conversation, Victor made the state- ments which the Administrative Law Judge and my colleagues find violated Section 8(a)(1). According to Victor's account of the discussion: [I] said, "That within a year I would not be sur- prised if you were no longer with the company." I also said that, "It's up to you to decide what you want to do. You have to do what you think is right. If you want to go down there and testify, the only thing I ask is that you tell the truth as you know it like you have told me and Mr. Cap- padona." The Administrative Law Judge concluded that Vic- tor violated Section 8(a)(1) by "warning" Nanez that he had better tell the truth at the Board hearing because if he did not he (Victor) "would not be surprised if you were no longer with the Company."6 Although pur- 5 Nanez never specifically denied making this statement. He did, how- ever, make a general denial of any discussion with Victor regarding the affidavits. As is discussed infra, the Administrative Law Judge did not find Nanez to be a reliable witness 6 Consistent with his earlier statements, Victor testified that he was not implying that he would personally discharge Nanez for giving false tes- Continued 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porting to adopt the Administrative Law Judge's con- clusions, my colleagues actually find a different violation-namely, that Victor's admonition to tell the truth was actually an exhortation and solicitation to Nanez to slant his testimony in favor of Respondent's position. I cannot agree with either finding and would dismiss the complaint in its entirety. In my judgment, employees do not have a Section 7 right to give false testimony under oath at a Board hearing. This being so, an employer who urges an em- ployee to "tell the truth" on the witness stand is not interfering with any statutory rights and is accordingly not violating Section 8(a)(1). The fact that Victor combined his instruction to tell the truth with the phrase "as you know it like you have told me and Mr. Cappadona" does not require a differ- ent result. According to Victor's credited testimony quoted above, Nanez had already confessed to him that the affidavit given to the General Counsel was "a lie."' Thus, the version first given to Victor and At- torney Cappadona was-by Nanez' own admission-"the truth." What we have, then, is a supervisor telling -an employee, who has already ac- knowledged giving false testimony under oath at least once, to "tell the truth" when he testifies at a forthcom- ing hearing. That Victor was justifiably concerned over the truth- fulness of the testimony which Nanez was about to give is more than adequately borne out by the observations made by the Administrative Law Judge regarding Nanez' demeanor: Nanez, an inept and inconstant witness, made a feeble impression. What the transcript does not reflect is the, excessive amount of time he took to answer questions, sitting silent for an unusual length of time after,each question on his cross- examination, although he readily answered ques- tions put to him by the General Counsel on his direct examination. He was equivocal, uncertain, and had a faulty memory. These observations compelled the Administrative Law timony but only that he could not then recommend Nanez for a Promotion Without a promotion, Victor felt that Nanez would voluntarily leave Re- spondent's employ within a year r My colleagues assert that Nanez' comment, "I had been a fool to go down there and testify and tell a he," does not constitute an admission that his testimony against the Company would be untruthful Rejecting the clear import of Nanez' words, they conclude that he was merely attempting "to mollify his supervisor and extricate himself, if only momentarily, from a difficult situation." Not only is this finding based upon pure speculation, but it also constitutes an acknowledgment that Nanez was prone to tailor his statements to fit the occasion, and thus he was very much in need of an admonition to "tell the truth " 8 N.L R.B. v. Saunders Leasing System, Inc., 497 F.2d 453, 458-459 (1974) Judge to conclude that "the manner in, which Nanez testified and 'his version of what was said by Victor neither imbued, instilled, nor suffused the undersigned with confidence that Nanez' recital was accurate." Under these circumstances, I find that Victor's state- ment to Nanez to tell the truth was neither a warning nor an improper inducement to slant his testimony in favor of Respondent.- In the words of the-Eight Circuit, reversing Saunders Leasing System, Inc., 204 NLRB 448 (1973), relied upon by both my colleagues and the Administrative Law Judge, Victor's suggestion was merely "a fair warning to a recalcitrant employee that his duty at the hearing was to tell the truth."' I would dismiss the complaint in its entirety. DECISION STATEMENT OF THE CASE' HENRY S. SAHM, Administrative Law Judge: This case was heard at Los Angeles, California, on various dates between February 7 and May 16, 1974, pursuant to a charge filed November 6, 1973, and a complaint issued December 28, 1973, and amended on April 30, 1974.2 The primary issues involved are whether Guidance & Control Systems Division, Litton Systems, Inc.,3 herein referred to as Respondent and Litton, discriminatorily discharged employee David M. Fa- tool because of his membership in and activity on behalf of the Charging Party Union and whether Respondent dis- criminatonly refused to promote employee Nanez because of his union activities and threatened that he would be dis- charged if he testified at this proceeding. After careful consideration of the briefs filed by the Gen- eral Counsel and Respondent on July 1, 1974, there are hereby made the following: FINDINGS OF FACT THE BUSINESS OF THE RESPONDENT EMPLOYER AND THE LABOR ORGANIZATION INVOLVED The Respondent Company, Guidance & Control Systems Division, Litton Systems, Inc., is a corporation organized under the laws of Delaware, and has its principal place of business in Los Angeles, California. Its guidance and control division in Woodland Hills, California, employs approxi- mately 2,800 workers engaged in the manufacture of inertial navigation and guidance equipment systems for both the United States Government and various foreign nations. Dur- ing the past year, Respondent has derived revenues in excess of $100,000 from the United States Government. During the past 12 months, it sold and shipped goods valued in excess of $50,000 directly to firms located outside California. Re- spondent admits, and it is hereby found, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. i The motions of counsel for the General Counsel and Respondent to correct the record are hereby granted. 2 Except where otherwise specified, all dates herein refer to the year 1973. 3 As amended at the hearing GUIDANCE & CONTROL SYSTEMS DIV., LITTON 211 It is further acknowledged by the parties that International Association of Machinists and Aerospace Workers, AFL--CIO, the Charging Party Union, and referred to herein as the Union, is a labor organization within the meaning of Section 2(5) of the Act. The Alleged Unfair Labor Practices This case is set against the background of a union organiza- tional campaign, commencing in the early part of January 1973„ among the production and maintenance employees at Respondent's Woodland Hills plant.' Beginning in Decem- ber 1967, the alleged discruninatee, David Fatool, worked intermittently as a quality test technician because of Respon- dent's various reductions in labor force.' He was last re- called to work on October 10, 1972, and worked the second or 4 p.m.-12:30 a.m. shift under the immediate direction of Stephen Victor, who supervises 40 to 45 employees. Fatool remained in that position until he ceased working for Re- spondent on October 3, 1973. On February 27, 1973, the Union notified Respondent by letter that Fatool was designated "a non-paid, voluntary in- plant member of the Union Organizing Committee," and warned that "any act of coercion, threats or discriminatory conduct directed at Mr. Fatool" would be considered an unfair labor practice and that appropriate charges would be filed with the Board. The letter concluded by requesting com- pany cooperation and stated that Fatool "has been advised of his rights regarding union activity on his own time." Begin- ning, in February and up until the conclusion of his employ- ment on October 3, Fatool wore two union badges promi- nent ly displayed on his shirt and jacket. Beginning in March 1973, he distributed union handbills to employees on the company parking lot, and solicited their signatures on union authorization cards. He placed on the plant's bulletin boards, with Respondent's permission, between March 1973 until his leaving the Company's employ on October 3, various com- munications which were intended to persuade the employees that they needed the Union. Respondent stipulated that Fa- tool "has been a very active union organizer engaged in usual organizational activities and the Company is aware and ad- mits it.", It should be emphasized that the quality of Fatool's work is not in issue here, as it was stipulated that he was a "satisfac- tory" employee. Respondent bases Fatool's termination on his alleged falsification of his timecard coupled with a prior history of two disciplinary actions taken against him by Re- spondent in March and April 1973, for being out of his work area and soliciting employees to favor the Union and interfer- ing with the work of employees on company time. Respon- dent's counsel stated that the two prior written disciplinary actions in March and April were considered in the determina- tion of the "quantum of punishment" appropriate when Fa- 4 Two representation election petitions were filed by the Union August 15 (withdrawn September 14), and December 10. ' There were 110 to 120 employees in the quality test department 6 Fatool testified that as of March 1973, there were five to six in-plant organizers in addition to himself. The record reveals that during the period of time relevant in this proceeding, there were as many as 19 employees who comprised the Union's in-plant organizing committee See Resp. Exhs 8a-i, inclusive tool was charged in October with- falsifying his timecard. Fatool was given a 1-day suspension after his second violation and warned that another violation could result in his dis- charge. On this occasion, Fatool remarked to Victor, his supervisor, that he would "get this lost time back." The three alleged violations of company rules occured within a 6-month period. After the second disciplinary action was taken on April 4, the Union filed an unfair labor practice charge against Respondent, alleging both disciplinary actions to be a violation of the Act. On June 11, 1973, the Regional Direc- tor dimissed the Union's charge because of insufficient evi- dence, stating, inter alia: In this regard we note that these actions occurred as a result of written statements filed with the Employer by employees and supervisors alleging specific instances of employee misconduct and violation of the Employer's no-solicitation rule. We further note that there is no evidence of disparate enforcement of the no-solicitation rule nor any evidence of Employer animus directed at Fatool, or any other employee, by the Employer because of his or their union protected concerted activities. On September 3, 2 weeks before the Union withdrew its representation petition, Fatool wrote a letter to John Leonis, director of the quality test assurance department, requesting that his hourly wage rate be reviewed and increased, and that the two letters of reprimand which he had received in March and April be removed from his personnel file. The following day, Fatool went to Leonis' office and spoke to him about his dissatisfaction with the amount of his wage rate and his two disciplinary citations. Also present was Stephen Victor, Fa- tool's immediate supervisor. Leonis advised Fatool that his wage rate was presently under review and a determination could be expected in 6 to 8 weeks, but he could not promise him a pay raise at that time. According to Fatool, Leonis then told him: "How can I justify getting you a raise when you are a union organizer? How can I go to the people who dole out the money and say I want a raise for Fatool when you are a union organizer?" Leonis denied he ever made these state- ments. On cross-examination, Fatool testified that Leonis told him that "because I was wearing the organizer buttons, that I would be watched more than anybody else. I would be no- ticed naturally because of the buttons. He says, `You are going to have to watch out.' He told me that I was confined to my area; that if I spoke to anybody in working hours, even if it was hello, it may be construed to be union solicitation; that I would be subject to disciplinary action. He said, `Stay in your work area. If you are outside of your work area, some- body is going to notice those union buttons."' Leonis, accord- ing to Fatool, told him that if he did not violate company rules during the next 6 to 8 weeks, he would remove the two disciplinary letters from his personnel file issued to him on March 27 and April 4, for being away from his work station during working time and interfering with other employees' work while they were performing their assigned tasks.' Fa- 7 Victor, his supervisor, whose testimony stands uncontradicted, stated that after Fatool received his first written reprimand he told Victor- "You can't do this to me, you know. I have got a letter that the Union sent to Mr. Caliguiri [President of Respondent] . . and you are not allowed to punish Continued 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD too] further acknowledged on cross-examination that when he met with' Leonis on September 4, regarding his request for a pay increase, Leonis encouraged him and told him not to worry about it because he would eventually succeed, citing his own case as an example of an employee who had come up through the ranks. Leonis later recommended Fatool for a wage increase effective on October 8. Before the increase went into effect, Fatool "resigned" on October 3. Stephen Victor testified that he was present when Ronald Birdsong told Fatool, after Victor handed Fatool his second letter of reprimand in April, that it was based on a complaint issued against him by one of the foremen in the production area and that Birdsong advised Fatool to go back out on the floor and direct his attention more toward getting his job done and to abide by the Company's no-solicitation rules. Victor denied that Birdsong told Fatool that because he was wearing union buttons the Company was after him or was going to get him. Subsequent to being cited in March and April for violations of company rules, Fatool committed a third infraction involv- ing an alleged falsification of his timecard, which resulted in his termination on October 3. On Monday night, September 24, while working the 4 p.m.-12:30 a.m. second shift, Fatool left the plant at 11 p.m., 1-1/2 hours before quitting time. Fatool testified that he went home because of illness and when he was unable to find Victor, his supervisor, he left a note for him. Fatool testified that the note stated the reason for his early departure and that he would charge the Septem- ber 24 absence to September 25 on his timecard. Victor de- nied the note mentioned anything about charging the Septem- ber 24 absence to September 25 and Birdsong, manager of the products acceptance group who read the note the next day, corroborated Victor's denial. Victor testified that on September 25, he looked for Fatool around 4 p.m., the start of the second shift, but Fatool was not there and his workbench was closed. Between 5 p.m. and 5:15 p.m., continued Victor, Nanez, also employed as a qual- ity test technician, told him that Fatool had phoned and asked him to notify Victor he would be late for work. Victor testified that at 5:30 'p.m. Fatool had not yet arrived and his workbench was not opened. Victor estimated that Fatool arrived at work after 6 p.m, He saw Fatool later that night when he distributed the timecards for the week of September 24 to the employees under his supervision. After he had given Fatool his blank timecard on Tuesday, September 25, Victor testified that Fatool later showed him his timecard which revealed that he had combined his 1-1/2 hours' absence on Monday with the absence of 1-1/2 hours at the beginning of the shift on Tuesday and then recorded the total 3 hours under the Tuesday column. Victor testified he told Fatool that was not permissible and ordered him to record his ab- sence correctly.' The following Thursday, September 27, Fatool testified that he again left the plant at 11 p.m., 1-1/2 hours before me for things like-for union activities " See International Woodworkers of America, AFL-CIO [Campbell & McLean] v. N.L.R.B, 262 F.2d 233, 234 (C A.D C., 1958); FalstaffBrewing Corporation, 128 NLRB 294 , 295, fn. 2 (1960). ''Victor testified that he instructs all employees under his supervision to make entries on their timecards daily of the number of hours they worked See Resp Exhs. 10 and 11 quitting time, because he was sick, but he did not notify Victor. He testified that he looked for Victor but was unable to find him, and that he then told Nanez, a fellow employee, that he was going home. Fatool then stated that he drove to his home, a distance of approximately 7 miles from the plant, and that when he arrived there, he realized that he had left his house keys on his workbench. He then returned to the plant, arriving there at 11:30 p.m., and according to him, "I thought I would make an attempt to work out the night." However, he testified, he was too ill to continue and so signed out again at midnight. He stated that although he was in the plant for a 1/2-hour period between 11:30 and 12 midnight, he did not put this on his timecard because "I did not charge the Company for it because I did not accomplish anything." Victor testified that he did not see Fatool at his workbench from 9 p.m. unitl 12:30 a.m., quitting time on September 27, and that "his work area was in disarray. His tools were out, his keys were laying on top of the work station and so was his beeper . . . a device which he used to communicate with his home to get telephone messages." Victor stated that when he left the plant between 12:30 and 1 a.m. that same night, Fatool's work area was in the same condition. Fatool testified that at the end of his shift on Friday, Sep- tember 28, he made out his timecard for the week as follows: He combined the 1-1/2 hour's sick leave which he took on Monday, September 24, with the 1-1/2 hour's sick leave that he took on Tuesday, September 27, and placed a total of 3 hours on his timecard under the Tuesday, September 25 col- umn. Fatool testified that he had the prior approval of Victor, his supervisor, to record his sick leave in this manner, stating that Victor "told me the important thing is that your total hours are correct. In other words, that if you work 40 hours, put down 40; if you work 30, put down 30; don't cheat the Company out of the hours." Fatool explained that after his timecard is filled out, Victor collects it on Friday, examines the card, and, if it is correct, approves it by placing his signature on the timecard. It is uncontradicted that Victor did not place his signature on Fatool's timecard for the week of September 24 to 28 inclusive, but brought the timecard to the attention of Birdsong, his superior. On cross-examination, Fatool's first explanation for plac- ing the 1-1/2 hour's sick leave for Monday under the Tuesday column of his timecard was that he did not wish "to chop up the timecard." He was asked again on cross-examination the reason he charged his Monday absence to Tuesday, Septem- ber 25, when it was just as simple to record it correctly in the Monday, September 24 box of his timecard. He answered, "It was just an arbitrary thing." He acknowledged that it would have been just as simple to record his absence under the Monday box of his timecard which was the first day he went home early. Fatool continued that he "'picked Tuesday be- cause of my note I left Victor on Monday night. I told him I would put the 1-1/2 hours on Tuesday . . . just so he would know that I wasn't trying to cheat anybody ...." Both Victor and Birdsong denied Fatool mentioned this in his note. On direct examination, Fatool testified that Victor dis- tributed timecards at "the end of the week." On cross-exami- nation, he stated that it could have been on Wednesday or it could have been on Friday, but that he normally received his timecard on Wednesday and "on rare occasions on Thurs- day." Victor testified that for the week of September 24, he GUIDANCE & CONTROL SYSTEMS DIV., LITTON distributed employee timecards on Tuesday, September 25. Company rules provide: "Timecards are distributed to each employee's work location at the beginning of each work- week." Respondent's Exhibits 10 and 11. When Victor collected Fatool's card on Friday evening, September 28, from the employees' timecard racks, he testi- fied that he noticed Fatool's timecard was incorrect as it showed Fatool to have beep absent 3 hours on Tuesday and having worked 8 hours on Monday, Wednesday, Thursday, and Friday, respectively. He then wrote a note to Birdsong some time after midnight which he attached to Fatool's time- card, stating that he did not think Fatool's timecard was filled out correctly and requested that the matter be "investigated." On Monday, October 1, Birdsong advised Victor that Fa- tool's timecard was being investigated and not to say any- thing to Fatool as it was company policy not to inform the employee before an investigation is completed. On Wednesday, October 3, at the beginning of the second shift, Fatool testified that Victor informed him that D. T. Pendergast, the employee relations representative, wished to see him in his office. Also present were Victor and Ronald Birdsong, manager of the product acceptance test group.9 Fatool's version, of what then occurred reads as follows: Deke [Pendergast] said to me, we have called you in here because of evidence that you falsified your time- card, and he proceeded to show me a sign-in and sign- out sheet," and he showed me my timecard and he says that your timecard does not reflect the actual days in which the times off were taken. I said that's correct and I proceeded to explain the same thing that I ex- plained here before. Deke [Pendergast] showed me the timecard and the sign-in and sign-out sheet and asked did you sign this, and I said yes, I signed it. And he says, well, on Monday you show an hour and a half off work, that will be September 24, and he says and also on Thursday, you show signing out-that would be the 27th-at 11:00 [p.m.] signing back in at 11:30, signing out again at 12:00, but here you have five hours listed on Tuesday. I proceeded to explain to him what I had done which was that on Friday I took the one and a half hours for Monday the 24th, and the hour and a half for Thursday the 27th, totalled them together for three hours and put them on Tuesday [September 25th column of my timecard]. In the process of this, he also accused me of being absent on Tuesday, being late to work [on Tuesday]. He says didn't you call in and say you were going to be late to work, and I said no, I didn't. To the best of my recollection, I was on time to work every day that week, and the time-to the best of my recollection, the three 9 Leonis, a company official, testified that on the morning of October 1, Victor notified Birdsong there "was a problem on Fatool's timecard," and Birdsong then notified Leonis. 10 This is also referred to in the record as a "register" which is kept at the guard's gate from 6 30 p.m to 6-30 a in., and is signed by employees when- ever they enter or leave the plant during the second and third shifts There are approximately 600 employees working on the second and third shifts. 213 hours that I took off were the three hours that I was absent from that workweek. Well, Deke [Pendergast] was still talking and he pulled out my paychecks, vacation and final paychecks, and he says something like well, Dave, we are going to give you a choice. He said your explanation isn't satisfac- tory to us. We are either going to let you resign or be fired. I said, I can't believe this, I said if you can show me where there is something wrong with my timecard, I will change it. If there is anything that you think was wrong, let's talk about it; but to the best of my recollec- tion that is correct. Ron Birdsong was in the office and Steve Victor was in the office and I looked at Steve and I said, Steve, I don't believe what is going on. What have you got to say. And Steve looked at me and said, well, this is very serious. And I said it appears serious. Now, I asked Ron [Birdsong] what have you got to say about it. He said I am just doing you a favor by being here, I don't have to be here ... . Anyway, then Deke reiterated again, well, what is it going to be, are you going to resign or be fired. I said neither. I am not going to resign or be fired, and he says, well if you take that attitude, we will just fire you; and at that point, I knew it was hopeless . . . . He asked for my badge . . . . I asked him, does that offer still hold, that being able to resign instead of being fired? I don't want to have that on my record when I go to another employment that I was fired. He says, the offer is still good. So I said okay, I will resign, not willingly . . . . I said, Deke, you can tell Hal Fisher [head of industrial relations] he has won the battle, but not the war. Fatool was accompanied by Victor as he left Pendergast's office. As he was leaving the plant premises, Fatool testified that he turned to Victor and said: "I can't believe they would stoop this low." He testified that Victor then replied he had "seen this happen before when the company wanted to get rid of somebody . . . . He told me Dave, I went to bat for you, and I said, oh, how did you go to bat for me. He says I talked to Deke before he came and got me that day, he says I told him that what they accused you of, that the discharge was excessive and harsh punishment." Victor's version of the meeting in Pendergast's office on October 3, when Fatool left the Company's employ, is as follows. First, when Fatool was confronted with his timecard, he said at first that "he was confused about the entries on the card." However, when Pendergast showed him the sign-in and sign-out employees' register, also referred to in the record as "timesheets" which are kept at the plant gate, the time- sheets revealed that Fatool had signed out at 11:00 p m. on Thursday, September 27th, signed back in at 11:30 p.m., and signed out again at 12 midnight. Nevertheless, Fatool's time- card, which is processed by the payroll department and upon which they base the amount of his paycheck, revealed that he had certified he had worked a full 8-hour shift on September 27. Victor testified that Fatool admitted to those present in Pendergast's office that he had made an "honest mistake." 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. P. Pendergast testified that Fatool received a general wage increase in April, which was given to all employees; a merit increase in June and that he was recommended before his termination on October 3, for a merit increase, effective October 8. Pendergast testified he examined the timesheets which are kept at the guard's gate of the plant and Fatool's timecard for the ,week beginning September 24, and that it revealed the following: On Monday, September 24, he signed out of the plant at 11:05 p.m. and he did not return to the plant that night. On Thursday, September 27, Fatool signed out of the plant at 11 p.m., signed back in at 11:30 p.m., and then signed out again at 12 midnight. Fatool's name does not appear on the timesheets for Tuesday, September 25, from 6:30 p.m. to 6:30 a.m., as those are the hours the gate is manned by a guard. His timecard for the week commencing September 24, shows 8 hours worked on Monday, 5 hours worked on Tues- day with 3 hours sick leave, and 8 hours worked on Wednes; day, Thursday, and Friday, respectively. On either October 1 or 2, Pendergast met with Birdsong, and stated that in view of similar circumstances involving other employees who had falsified their timecards and were discharged that he would recommend similar action for Fa- tool, especially considering that he had been disciplined on two other occasions in the past 6 months. Pendergast testified that his authority was limited to making recommendations, and that it was the department head who had final authority to discharge. Pendergast corroborated Victor's testimony as to what transpired on October 3, when Fatool was permitted to re- sign. He added that the paychecks which he handed to Fatool in his office on that day were prepared before the exit inter- view because state law requires an employer whenever a ques- tion of possible termination arises, employees must be paid all monies due them at the time of the discharge. He stated it was company policy in such a situation to prepare checks in the event that the termination does take place in order to have them available to pay the employee at that time. Fatool was paid for 39 hours' work for the week beginning September 24 and ending on the 28th, inclusive. This compu- tation, testified Pendergast, was based on Fatool being out of the plant 1-1/2 hours on Monday, September 24, late for work an hour on Tuesday and absent for 1-1/2 hours on Thursday, September 27, for a total of 4 hours, of which Fatool recorded on his timecard 3 hours sick leave as having been taken on Tuesday, September 25. Fatool was paid for 36 hours regular time plus 3 hours sick leave or a total of 39 hours. He was not paid for the 1 hour he was late to work. Resolutions of Facts and Credibility" Much of the testimony delineated above is uncontradicted. However, some of the witnesses' versions of what occurred with respect to the salient issues require a careful analysis of conflicting testimonies. Consequently, findings of fact and resolutions of credibility made herein result from an attempt to reconcile the evidence as It whole in an effort to determine 11 See N.LR.B v. Lewisburg Chair & Furniture Company, 230 F.2d 155, 156 (C.A. 3), NL R.B. v. Local 420, UnitedAssociation ofJourneymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL, et al [J. J. White, Inc.], 239 F 2d 327, 328 (C.A 3) what was meant and what occurred. Observation of the wit- nesses, as well as an analysis of the entire record and the inferences to be drawn from it, have resulted in certain credi- bility findings with respect to the substantive testimony of the witnesses. These conclusions have been reached by noting the witnesses' manner of testifying with respect to the accuracy of their memories, their comprehension, and their general demeanor on the witness stand in answering the questions put to them. In crediting some witnesses and discrediting others, and giving weight to certain evidence as against other evi- dence, it has been necessary to detect and appraise various "potent imponderables permeating the entire record."12 One of these "potent imponderables" is the demeanor of witnesses in testifying. The Board-has recognized that the demeanor of witnesses must often be a factor of great consequence in resolving issues of credibility and attaches great weight to credibility findings based on demeanor." This type of elu- sive and incommunicable evidence which may not appear in the record and is comprised of elusive intangibles and "potent imponderables" that "words do not preserve" and which are difficult to capture and to describe by written words, often makes it difficult for the trier of the facts to convey or de- scribe the impression which a particular witness makes upon him." This difficulty is inherent in making credibility find- ings where the trier of the facts must choose between discor- dant versions of witnesses whom he has seen. Judge Learned Hand described this difficulty as: . . . [findings] based on that part of the evidence which the printed words do not preserve. Often that is the most telling part, for on the issue of veracity, the bearing and delivery of a witness will usually be the dominating fac- tors, when the words alone leave any rational choice .... Nothing is more difficult than to disentangle the motives of another's conduct, motives frequently un- known'even to the actor himself. But for that reason those parts of the evidence which are lost in print become especially pregnant, and the [court] which had no access to them should have hesitated to assume that the examiner was not right to act upon them.15 All evidence on disputed points which appears in this rec- ord of approximately 1,200 pages is not described to avoid undue lengthening of, and a resulting delay in, the issuance of this decision. In resolving witnesses'. discrepant versions, where no mention is made of certain evidence introduced by the parties, it is not because consideration was not given to such evidence, but rather because it is considered immaterial to deciding the issues in this proceeding. However, all rele- vant evidence has been considered and, where required, re- 12 International Association of Machinists, Tool and Die Makers Lodge No. 35 [Serrick Corp.] v N.L.R.B, 311 U S. 72, 79 13 Hadley Manufacturing Corporation, 108 NLRB 1641, 1643 (1954); Roxboro Cotton Mills, 97 NLRB 1359 at 1368, where the Board said, "the Trial Examiner made no reference to the demeanor of either witness-as to which it is our policy to attach great weight " 14 NL.R B. v. James Thompson & Co., Inc., 208 F.2d 743, 746 (C.A 2) 15 N.L.R.B. v Universal Camera Corporation, 190 172d 429, 430, 431 (C.A 2, 1950). See Retail Store Employees Union, Local 400, a/w Retail Clerks International Association v N.L.R.B, 360 F.2d 494, 496, 497 (C A.D.C 1965); Howell Chevrolet Company, 204 F.2d 79, 86 (C.A 9), affd 346 U S. 482; N.L.R B. v. Dimon Coil Company, Inc., 201 F.2d 484, 487 (C.A 2). GUIDANCE & CONTROL SYSTEMS DIV., LITTON 215 solved. Where testimony is credited which is in conflict with other testimony but no mention is made of the conflicting testimony, it is not because consideration was not given to such evidence but rather it was rejected only after evaluating all objective factors, considering all countervailing evidence, and then discarded in the face of the credited testimony which was found to be of undoubted probative value. It would appear that in accordance with the credibility doctrine recently enuciated in Permaneer Corporation, 214 NLRB No. 47 (1974), this requires the fact finder whenever he credits testimony to expressly warrant that he has not only consid- ered the conflicting testimony but also to explain his reasons for rejecting it. Because of this burden, this Decision is un- duly lengthy, resulting in a delay in its timely issuance. See Arrow Gas Corporation, 124 NLRB 766, 770, 771 (1959). In determining credibility in this proceeding, the demeanor and conduct of witnesses also has been observed as well as their candor or lack thereof,- their apparent fairness, bias, or preju- dice; their interest or lack thereof; their ability to know, comprehend, and understand the matters about which they have testified; whether they have been contradicted or other- wise impeached on matters relevant to deciding the issues herein; and the interrelationship of the testimony of the wit- nesses and the written evidence presented. By this discussion of the evaluation placed upon the de- meanor of a witness in testifying, it is not intended to convey the impression that consideration was given exclusively to this type of evidence in determining credibility. This was only one factor. Consideration has also been given to the sur- rounding circumstances, and the plausibility, as well as con- sistency or inconsistency, of individual witnesses' testimony with substantial uncontroverted evidence and demonstrable facts. The Supreme Court has defined substantial evidence so: Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. "It means such relevant evidence as a reasonable mind might accept as adequate to sup- port a conclusion . ..."16 Findings may not rest on suspicion, surmise, implications, or plainly incredible evidence." "Circumstances that merely raise a suspicion that an employer may be activated by unlaw- ful motives are not sufficiently substantial to support a finding."" Even in cases where background circumstances surrounding a discharge may create the suspicion that the discharge was illegally motivated the General Counsel still has the burden of showing that the employee was dis- criminatorily chosen to be discharged. "Once it is determined that,disciplinary action is warranted the extent of the action taken is purely within the discretion of the employer and the [fact finder] may not substitute [his] judgment for that of the employer."19 The testimony of the credited witnesses, as well as uncon- tradicted written evidence, leaves no room for doubt that 16 N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U S 292, 300. 17 Universal Camera Corporation v NL R.B, 340 US 474, 484-485 (1950) 18 N.L.R.B. v The Citizen-News Company, 134 F.2d 970, 974 (C.A. 9) 19 N.L.R.B v. Ace Comb Co. and Ace Bowling Co, Division ofAmerace Corp., 342 F 2d 841, 846-847 (C.A. 8, 1965). Fatool, the alleged discriminatee, had not only carried out his duties as a union in-plant organizer on two occasions in a fashion which exceeded the limits of statutory protection and thus not only disrupted operations at the plant but also subse- quently falsified his timecard, which is a violation of company rules. Fatool is a volatile, verbose, and self-dramatizing person, patently given to exaggeration and to exhilaration in unwind- ing a strongly flavored story. He displayed an inadequate memory and his answers to crucial questions on cross-exami- nation were sometimes equivocal, evasive, vague, ambiguous, confusing, and at other times inconsistent and incomprehen- sible. His demeanor while on the witness stand and tendency to fence with counsel while under cross-examination left much to be desired. His recital of what occurred with respect to his alleged tardiness on September 25, and also the critical nights of September 24th and 27th when he left work early because of illness, was not only inherently improbable but also lacks plausibility for the reasons hereinafter indicated. Fatool did not impress the trier of these facts as either a frank or forthright witness as he seemed to be not only seeking to color his testimony but also to be concealing facts. For these reasons, his demeanor while testifying, as well as much of his testimony itself, not only militates against ascribing credence to Fatool's story 'of what occured but compels a factual find- ing discrediting his version of the decisive issues in this pro- ceeding. It should also be mentioned that some of Fatool's answers were voiced in response to leading and suggestive questions propounded by the General Counsel which impugns the weight to be given such testimony. Furthermore, as the vice in counsel asking his witness leading questions is that they suggest the desired answers which the witness will often merely adopt, it may seem futile for opposing counsel to object once such a question has been asked and the desired answer suggested. Little probative value has been given to the testimony elicited in this manner.20 Fatool's testimony, taken in toto, is of dubious weight. Thus, Fatool testified that he left a note on September 24 for Victor, his supervisor, notifying him that he had gone home ill, but on September 27, he claims he was so sick when he left the plant at 11 p.m. "on the verge of passing out" that he was unable to write a similar note. At that time, September 27, he drove in his automobile approximately 7 miles to his home. When he arrived there, he realized that he had left his house keys on his workbench whereupon he returned to the plant arriving there at 11:30 p.m. He testified that he "felt a little better" and worked from 1-1:30 to midnight when he became "dizzy" and began "seeing stars," at which time he drove home again, a distance totaling 21 miles of travel be- tween 11 p.m. and 12:30 a.m. When asked on cross-examination why he did not leave a note for Victor on September 27, he evaded the question stating he had complained to Victor "and another supervisor many times" about the electric lights over his workbench being "too bright" which gave him "headaches" and on the night in question, caused him to see "white spots." Victor's testimony is uncontradicted that these lights required no re- pair but all that Fatool had to do was to turn them off by an 20 See Liberty Coach Company, Inc., 128 NLRB 160, 162, fn. 7 (1960) 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD electric switch located at his workbench. After additional questioning, Fatool finally answered the original question why he did not leave a note, stating: "I did not feel up to writing a note" on September 27, for Victor notifying him that I was going home because of being sick. Noteworthy also, are the following answers of Fatool when under direct examination by the General Counsel: That his instructions when leaving the plant during working hours were to "either tell your supervisor, or leave a note, depend- ing on the circumstances, tell one of your coworkers where you were going to be, where you are going . . . ." However, when he recounted on direct examination the circumstances of his leaving the plant at 11 p.m., on September 27, he states he "looked for Victor. I couldn't find him; I left ... . When he returned for his house keys at 11:30 p.m. and again left the plant at midnight, he states, "I never saw Steve [Victor]." When Fatool was asked on cross-examination why he waited until the end of the shift on Friday, September 28, to fill out his timecard for the workweek beginning Monday, September 24, he testified this was not unusual but admitted that "sometimes" he made out his timecard daily. Moreover, it was not until October 3, when he was summoned to Pender- gast's office and shown by the latter the employees' sign-in and sign-out register kept at the guard's gate which revealed that he had left the plant for 1-1/2 hours on September 24 and not on September 25, which he had recorded on his timecard to show him as having worked 5 hours and taken 3 hours sick leave on September 25. The company officials also claimed at the October 3 meeting in Pendergast's office that Fatool failed to record on his timecard that he was late for work on September 25. Fatool denied this, stating, "to the best of [his] recollection [he] was on time to work every day that week... However, Fatool insisted that Victor had given him per- mission to combine his 1-1/2 hours absence on September 24 with his absence of 1-1/2 hours on September 27, and record the 3 hours under the September 25 column of his timecard. Victor denied this. His denial is credited as it is unbelieva- ble that permission would have been granted by Victor to Fatool to literally falsify his timecard and thus expose Victor to possible discharge himself by assuming this grave responsi- bility, when it is.considered that the Company's written rules not only forbid such a patently improper procedure21 but also printed on each timecard is a statement which each employee who signs his card vouches for its accuracy. This reads as follows: "This is a true and complete statement of my hours worked excluding regular lunch periods." On cross- examination when asked again the reason for him combining his 1-1/2 hours' absence on September 24 with his 1-1/2 hours' absence on September 27, and recording it as being taken on September 25, he discarded his prior justification that Victor had given him permission-to do so and inconsist- ently answered that he did not want "to chop up" his time- card, and later he lamely explained, "Just genius . . . . It was just an arbitrary thing."22 Furthermore, it is found, for the reasons hereinafter explicated at footnote 38 and contrary 21 See Resp Exbs 10 and 11, "Importance of Accurate Timecard Prepa- ration." 22 Fatool incredibly testified at another point in his direct examination that he never saw Victor on either September 27 or 28 to Fatool's denial, that he failed to record he was at least 1 hour late for work on September 25. Nor is Fatool's version credited of what occurred on Octo- ber 3, when he was leaving the plant accompanied by Victor, after his exit interview in Pendergast's office. It will be re- called Fatool testified that after he "resigned," he said to Victor he could not believe the Company "would stoop this low" to which Victor, according to Fatool, replied, "I have seen this before when the Company wants to get rid of some- body ...." Fatool continued that Victor told him when the basis for his discharge is considered, it was "excessive and harsh punishment," stating he told Pendergast that he "didn't believe that Fatool should have been' fired or forced to resign because of this ...... Victor denied such a conver- sation ever occurred. This testimony of Fatool is incredible as it is inconceivable that Victor, a loyal company supervisor, would tactlessly compromise his employer in such an irra- tionally damaging manner when it is considered that it was Victor who initiated the charges against -Fatool which even- tuated in him being given the choice of resigning or being fired. Lending credence to Victor's denial is the cogent fact that it seems unlikely that Victor would utter such incrimina- tory statements to Fatool, an ardent union proponent who was in the forefront of organizational activities at the plant. Equally incredible is Fatool's testimony that when he met on September 3 with Leonis, a company official, and re- quested a pay raise that Leonis stated he could not justify giving him a wage increase inasmuch as Fatool was a union organizer. It is not too unreasonable to assume that in a large plant of 2,800 employees, that its officials and supervisors had been instructed by its attorneys and its industrial relations department as to what they could and could not do and say during the course of the then current union organizational campaign. It strains one's credulity to believe that an official holding the position Leonis did in the Company would be so incredibly crassly foolish as to make such an inculpatory and prejudicial statement to one of the foremost active employee union organizers in the plant. On the contrary, it is found that Leonis, as he credibly testified, advised Fatool that his wage scale was presently under review. Corroborative of this find- ing is the uncontracted fact that Fatool was later granted a pay increase. Also pertinent in evaluating Fatool's credibility is his unre- sponsive answer to a question on cross-examination as to why he did not report to the first-aid facility in the plant when he became ill on September 24 and 27. Fatool unresponsively- replied that his physician prescribed medicine for him during the week of September 24, which made him "dizzy."-When he was asked whether he ever obtained a certificate from his doctor stating this medicine caused dizziness, Fatool gave the meaningless and incredible answer that he "was never al- lowed to" explaining, "Because I went to Victor and I told him of the instance where I was sick and I was under a doctor's medicine, I said, let's call the doctor and so forth and we will talk to him. They wouldn't let me do that." Fatool acknowledged that he made no reference to this alleged inci- dent in either his direct examination or in the affidavit which he gave to a Board investigator. Fatool also testified in the context of Victor claiming he was late for work on September 25, that when he worked under the supervision of Teegan in November 1972, he was late several times. On one occasion, GUIDANCE & CONTROL SYSTEMS DIV., LITTON he recalled, he was 2 hours late in arriving at Respondent's plant and when he asked Teegan if he should record it on his timecard, Teegan told him to: "Forget it." Victor credibly testified that after Fatool was transferred from Teegan's de- partment to his supervision, he asked Teegan whether this was true and Teegan denied it. Fatool's testimony with re- spect to the Teegan and medicine incidents strains one's credulity. Discussion and Conclusions The primary issue here, then, is a factual one, namely, whether Fatool was "constructively. discharged" by Re- spondent, as alleged in the complaint, in violation of Section 8(a)(3) of the Act, because he "joined or assisted the Union," or for valid cause as claimed by the Respondent. The trier of fact does not simply look to see whether a valid ground for the discharge exists. Rather, "the question the trier of fact must decide is whether the permissible reason is put forth as a mere pretext to justify an impermissible discharge, or whether the permissible reason is the true reason-in other words, whether an antiunion employee would have been dis- charged for the same conduct."23 The Board recently stated that, "Even where an employer may want to rid himself of an employee whose union activities have made him persona non grata, if the employee himself obliges his employer by providing a valid independent reason for discharge-i.e., by engaging in conduct for which he would have been dis- charged anyway-his discharge cannot properly be labeled a pretext and unlawful."24 In resolving this question, the burden of proof is on the General Counsel to establish and sustain the allegations of his complaint by a preponderance of the probative evidence, and, where a discriminatory severance , as here, is charged, then he must establish by a preponderance of the evidence that such job severance was discriminatory.25 The General Counsel, in order to prove a prima facie case, must show that the alleged discriminatee engaged in activities protected by Section 7 of the Act and that the Respondent knew Fatool engaged in such activity prior to discharge, and that he was severed from his employment as a result of having engaged in such activity. However, once the General Counsel has established a prima facie case of unfair labor practices, the burden of going for- ward with evidence sufficient to rebut the General Counsel's prima facie case and to prove its affirmative defense that Fatool's termination was for good and valid cause, falls upon the Respondent 26 The legal incidence of such an affirmative plea is that the burden of going forward with evidence to prove this contention shifts to Respondent .27 However, it is not the burden of the Respondent Company to show the absence of discrimination but that of the General Counsel to show its presence. 28 Furthermore, the burden of proof rests 23 N.L.R.B. v Milco, Inc., et al., 388 F 2d 133, 138 (C A. 2, 1968). 24 Erie Strayer Company, 213 NLRB No 45, fn 9 of the Board's Decision and Order (1974) 25 Indiana Metal Products Corporation v N.LR B., 202 F.2d 613, 613 (C.A 7); N.L.R B. v Deena Products Company, 195 F.2d 330, 335 (C A 7), cert denied 344 U.S. 827 26 J M Lassing, et aL, d/b/a Consumers Gasoline Station, 126 NLRB 1041, 1042, fn 6 (1960). 27 Cf N.L.R.B. v Fleetwood Trailer Company, 389 U.S. 375, 378 (1967); N.L R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967). 217 not upon the Respondent to convince the trier of the facts that the termination was not in violation of the Act, but upon the General Counsel to prove it was illegal. 29 An employer's antiunion disposition, standing alone, does not justify a find- ing of discrimination, as it is not unlawful to dislike a union.30 Besides, an employer may discharge an employee for good, bad, or no cause whatsoever without violating the Act, so long as the employer is not motivated by antiunion reasons. The Act does not circumscribe an employer's right to hire, discipline, or discharge an employee for reasons not forbid- den by the Act, even though the employee may be an active union adherent or advocate. Nor does such activity confer any immunity against discharge." Both the Board and the courts, in other cases where it has been found that a respondent has committed unfair labor practices, have considered a respondent's animus or hostility toward a union and/or the protected activities of its em- ployees. Evenhanded justice would require that where there is no credible evidence produced by the General Counsel to show a company had animus against a union or was moti- vated by such antiunion bias, as is the situation in the case at bar, this factor should be considered in evaluating whether the Respondent has committed any unfair labor practices.32 The record shows that the Resopndent's action when it disciplined Fatool on two prior occasions , coupled with his termination for falsifying his timecard on October 3, served legitimate business ends. However, argues the General Coun- sel, the Respondent Company "has no rule or policy prohibit- ing the `lumping together' of sick leave time" and cites for his authority Respondent's Exhibits 10 and 11, which are cap- tioned "Importance of Accurate Timecard Preparation." These two exhibits state just the opposite. These were dis- tributed to all employees and lay emphasis upon the fact that the timecards constitute "a legal record justifying the pay tendered to each employee, and stress that employees' time- card entries must be "timely, accurate and complete." It also emphasizes that preparation of timecards must be "meticu- lous" and "attendance properly made" thereon . It should be noted that on each timecard there is printed the following certification signed by each employee when he turns in his timecard at the end of the week : "This is a true and complete statement of my hours worked excluding regular lunch peri- ods." 28 NL R.B. v. Brady Aviation Corporation, 224 F.2d 23,25 (C.A. 5) enfg. 110 NLRB 25 (1954). 29 N.LR.B v Cleveland Trust Company, 214 F 2d 95, 99 (C.A 6); N.L.R.B v. Drennan Food Products Co., 272 F.2d 23, 28 (C.A. 5, 1959). 30 N.L.R.B. v. Colvert Dairy Products Company, 317 F.2d 44, 46 (C.A. 10, 1963). 31 Lozano Enterprisesv N.L R.B., 357 F.2d 500, 502-503 (C.A. 9, 1966), NL.R.B v Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C A. 5, 1965). 32 Probative of a lack of union animus on the part of the Company are, inter alia, the following indicia. Fatool was granted a merit wage increase shortly before his termination which, however, did not become effective until after his termination, Respondent gave Fatool permission to post on its bulletin boards written material advocating the need of the employees to join the Union, and Leonis assured Fatool in September that if he did not violate company rules for the next 6 to 8 weeks, he would remove from his personnel file the two letters of discipline issued to him All-G(assAquarium Co., Inc, 214 NLRB No 24 (1974). 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to the General Counsel's incorrect assertion that the Company had no rules prohibiting the "lumping together" of sick leave, the facts are otherwise as the Com- pany had promulgated specific written rules in 1971 and 1972, entitled "Importance of Accurate Timecard Prepara- tion" which prohibited the falsification of employees' timecards.33 To accept the General Counsel's representation that the Company has no such prohibition would require an assumption that language has lost its power and meaning. Or perhaps, we have met with an incident which happened to Alice in adventures "Through the Looking Glass," when in arguing with Humpty Dumpty about the meaning of words, he settles the argument in this manner: "When I use a word," Humpty Dumpty said in rather scornful tone, "it means just what I choose it to mean-neither more nor -less." In order to lend plausibility to the General Counsel's the- ory that the above evidence constituted a violation of Section 8(a)(3), it would be necessary to hold, under the circum- stances here revealed, that an employer, in an effort to oper- ate his business efficiently, could not terminate his employees for disregarding working rules without being accused of a "constructive discharge,"' as alleged in the complaint, and thus assume the risk of being found guilty of an unfair labor practice. The Act does not circumscribe an employer's right to discipline an employee for reasons not forbidden by the Act. The employer, in the management of his business, is free to impose whatever discipline on an employee he wishes and for whatever reason so long as his action is not based on union considerations or intent to interfere with the purposes of the Act and where just grounds for disciplining appears, it is ordinarily a mere matter of speculation to hold that terminat- ing the employee was because he was a union adherent. This is particularly so in the instant case where Respondent's ac- tion in citing Fatool on three occasions within 6 months was for good cause. It is not too unreasonable to conclude that the action taken fitted the circumstances. To infer otherwise would be tantamount to my substituting my own ideas of business management for those of the Company. This is not permissible.34 This is a management prerogative and neces- sary in order to maintain production, efficiency, and disci- pline. Where a proper collateral motive can be as reasonably inferred as an unlawful one, the act of management cannot be held to be improperly motivated.35 A court graphically stated this concept in the following manner: But as we have so often said: management is for manage- ment. Neither Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision. Management can discharge for good cause, or bad cause, or no cause at all. It has, as the matter of its own business affairs, complete freedom with but one specific, definite qualification: it may not discharge when the real moti- vating purpose is to do that which Section 8(a)(3) forbids.36 33 See also fn 21 and related text 34 NL R.B. v Blue Bell, Inc, 219 F 2d 796, 798 (C A 5) 35 N.L.R.B v Huber & Huber Express, Inc-, 223 F 2d 748, 749 (C A. 5), N.L.R.B. v.. The Houston Chronicle Publishing Company, 211 F.2d 848, 854-855 (C A. 5). 36 NL.R.B. v T. A. McGahey, Sr, et al, d/b/a Columbus Marble Works, 233 F.2d 406, 412-413 (C A 5, 1956) Moreover, when the Respondent's explanation for its rea- sons for issuing the two written reprimands to Fatool are not only reasonable, but uncontradicted in that Fatool was sup- posed by the Regional Director to have committed infrac- tions of company rules on two previous occasions, and this is coupled with the timecard incident, the burden of going forward with the evidence then shifts to the General Counsel to establish the falsity of Respondent's explanation and the truth of his contentions. This he has failed to do.37 There- fore, it is found that the foregoing facts and circumstances fail to expose by a preponderance of the probative and credible evidence that Respondent's purpose in citing Fatool for falsi- fying his timecard including his failure on September 25 to record being late to work 1 hour,38 coupled with his two disciplinary actions within a period of 6 months prior to the end of Fatool's employment, were neither discriminatorily nor unlawfully motivated. Accordingly, it is recommended that the 8(a)(3) allegation of the complaint be dismissed as there is insufficient evidence, either direct or circumstantial, to support a finding that the Respondent was motivated to terminate Fatool because of his' union activism.39 The Alleged Violations of Section 8(a)(1) On April 30, 1974, almost 3 months after this trial began, the General Counsel filed amendments to the complaint. The amendments alleged that on April 15, 1974, Respondent committed an unfair labor practice when Steve Victor told Albert Nanez, who is presently employed by Respondent as a quality test technician, that he did not receive a promotion because of his activities on behalf of the Union. It is also alleged that Section 8(a)(1) was violated when Victor told Nanez that he did not receive a promotion because he had appeared to testify at the trail in this proceeding; and Victor had threatened Nanez that he would not receive a merit review and he would be discharged if he testified at- the trial when it "reopened" on April 30, 1974. Victor's testimony on direct examination reads in part as follows with respect to what was said when he requested Nanez to come to the office on April 15, 1974:40 I told him . . . it had to do with the Fatool case and I 37 Martel Mills Corporation v N.L.R B., 114 F 2d 624, 631 (C A. 4); N.LR.B v. Entwistle Mfg Co, 120 F 2d 532, 535 (C.A. 4, 1941). 38 This finding is based on Victor's credited testimony that Nanez in- formed him between 5 and 5 15 p in on September 25, that Fatool phoned to say that he was sick and would be late to work Victor also testified that the first time he saw Fatool at work that day was sometime between 6 and 7 p in. It will be recalled that the sign-in and sign-out employees ' register is kept at the guard's gate between 6 30 p in . and 6.30 a in. It is not too unreasonable to assume that Fatool reported for work before 6:30 p in It is believed in reconstructing and considering all the testimony that Fatool took 1-1 /2 hours sick leave on September 24, was late for work on Septem- ber 25, and combined both these absences and listed the 3 hours under the sick leave column for September 25 and intentionally neglected to record the 1-112 hours absence for September 27 on his timecard. 39 The General Counsel's brief has been carefully read and the cases cited by him studied Unfortunately, the General Counsel's contentions are pre- mised on a view of the facts which I do not share 40 In the interests of accuracy , the testimony of Victor, who testified as to the critical aspects of the alleged unfair labor practices in this phase of the case, has -been quoted in haec verba as the flavor and nuances of his testimony at times does not lend itself to literal translation or interlineal rewording so that even a metaphrase might be considered imprecise. J GUIDANCE & CONTROL SYSTEMS DIV., LITTON 219 asked him if he knew that the Fatool case had been reopened and he said, no, he didn't and I said, well, yes it had and I said, "There is one thing that has really been bugging me about this thing and I've got to know what's going to happen. I have got to know your side of the story," I said, "because at the conclusion of the hearing that we had, the day that you came down to testify on behalf of Fatool, when you weren't allowed to testify, you weren't in the room, but Fatool's lawyer, Mr. Roth- bloom got up and made an offer that said you were going to get up and testify that on Tuesday of the 25th of September, that you did not receive a phone call from Fatool and that you didn't give me a message saying that Fatool was going to be late that day and I knew right away that that was contrary to what you had told me and it was contrary to the affidavits that you had given to the company lawyer, Mr. Cappadona. He showed me both of those affidavits and it states on there that you couldn't remember whether you had re- ceived a phone call from Fatool on that day or not. Mr. Nanez said, "Yeah, I had been a fool to go down there and testify and tell a lie." And I said, "Well that's the only thing I am worried about, because if you go down to the courtroom and lie, you are technically call- ing me a liar and I am the guy that's got to go to bat for you and if you are going to call me a liar, then I am not going to go out and put you for promotion or anything else." I said, "You can't expect me to do that." I further said, that, "I wouldn't be surprised if within a year from now you wouldn't be working for the company any longer." I then went into discussing all the details about Fatool- JUDGE: Just-go ahead. THE WITNESS: I said in a year, I said, "That within a year I would not be surprised if you were no longer with the company." I also said that, "It's up to you to decide what you want to do. You have to do what you think is right. If you want to go down there and testify, the only thing I ask is that you tell the truth as you know it like you have told-me and Mr. Cappadona." I said, "I can go to bat for you," I said, "but you can't expect me to go to bat for a promotion or anything else if you are going to get on the witness stand and lie." Q. During the course of the conversation relating to the promotion, did you ever say to Mr. Nanez that he had not received his promotion because of his activities on behalf of the Union? A. No, I did not. Q. Did you say that he did not receive his promotion because he had appeared to testify at the hearing? In this hearing? A. No, I did not. Q. You did testify that you said to him that you would not be surprised that if he testified, by your definition, untruthfully, that he would no longer be with the com- pany within a year? A. Yes, I did. Q. What did you mean by that? A. What I meant, I was kind of emotionally upset at that time, because here is a guy I had been going to bat for in giving him all his reviews. He is a good, hard worker. He makes me look good and he makes the com- pany look good and I couldn't see justifying going to bat for him any more if he was going to come down here and get on the witness stand and lie, in effect, calling me a liar; so what I meant was that I wouldn't go to bat for him, get him a promotion, and if he doesn't get a promo- tion, he will probably quit of his own volition because he wouldn't get-any more money. I never meant that I was going to discharge him myself. A. Well, later on when I talked to yourself, [Respondent's Attorney] you told me it was a stupid thing that I did and I realized I-I was emotionally distraught and it was a stupid thing and I just got carried away and wasn't thinking. When I became rational again, I realized that the man's performance still hasn't changed. He is doing a good job and therefore, I recommended him for an in- crease. Q. Did you ever at any time say to Mr. Nanez that you did not want him to testify at all or that it would be in his best interest not to testify at all'! A. I told him it would be in his best interest not to come down here, get on the witness stand and lie. I didn't say-I never said it would be in his best interest not to come down here and testify. On cross-examination, Victor testified that he wanted to talk to Nanez because he "care[d] for him as an individual and good employee," and "to explain to him why things didn't happen and what things I was going to do in the future." Nanez, who has been employed by the Company for 6 years as a quality test technician , became a designated in- plant organizer for the Union in March-1973, and remained so until the Union lost a Board-conducted election on Febru- ary 28, 1974. From that date until the date this trial con- cluded on May 16, 1974, he received a total of 18 per cent in wage increases. Nanez, an inept and inconstant witness, made a feeble impression. What the transcript does not reflect is the exces- sive amount of time he took to answer questions, sitting silent for an unusual length of time after each question on his cross-examination, although he readily answered questions put to him by the General Counsel on his direct examination. He was equivocal, uncertain, and had a faulty memory. When Victor testified at the February 8, 1974, session of the trial, he stated that on September 25, Nanez told him between 5 p.m. and 5:15 p.m. that Fatool called in sick and he would be late to work. The first time he saw Fatool at the plant on that day, testified Victor, was between 6 and 7 p.m. See Footnote 38. On February 6 and 8, Nanez gave two written statements to Respondent's attorney that he remem- bered receiving a telephone call from Fatool "one evening around the time I began the shift," and Fatool asked Nanez to tell Victor "he would be in a little late as he was at the doctors." The second shift starts at 4 p.m. On February 27, 1974, when the General Counsel called Nanez as a witness in this proceeding, he first made an offer of proof based on Nanez' affidavit which was taken by the General Counsel on 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 24, 1974, in which he stated, inter alia, that Nanez would testify that the only time he received a phone call from Fatool was between 4:30 and 4:45 p.m. on either October 1 or October 2, 1973. One of the allegations in the amended complaint states that Victor told Nanez on April 15, 1974, that he did not receive a promotion because of his union activities. The record re- veals that on March 18, 1974, a review of all 18 quality test technicians employed by Respondent was completed. The primary purpose of the review was to rate all 18 and then adjust their wages accordingly. Another purpose of the re- - view was to promote the top rated technician to the only vacancy available in this particular salary classification. Of the 18 technicians 4, including Nanez, were rated as "excel- lent" and Nanez was ranked third of the 18 men rated. The number one man received the promotion to the one available vacancy later the same month. Nanez testified that Victor told him on April 15, 1974, that "I wasn't going to get mine [promotion] because of the Union activities that I had been organizing for and he said mainly because I appeared on the Fatool case here in the hearing . . . He said that really put the lid . . . on the promotion." Nanez continued that Victor told him that this proceeding had been "reopened" and "that it would be to my best interest if I didn't appear at the hearing when it was reopened .. . . He said I had a very good potential with the Company and if I appeared at the hearing, I wouldn't get the promo- tion and I wouldn't get the review in June. . , . He said that within a year's time, he could guarantee I wouldn't be working with the company." In determining the credibility of Victor and Nanez with respect to this April 15th conversation, the following has been considered, inter alia: the demeanor of Victor and Nanez while testifying, their apparent bias, prejudice, or fair- ness, and comparison of their respective testimony as well as written exhibits." Witnesses are on occasion fouled by the air of partisanship, overzealousness, and other emotions to which the human flesh is subject. Witnesses do not emerge from antiseptic sur- roundings nor do they testify in a vacuum which protects them from the failings to which the human mind and spirit are subject. Moreover, unconscious and unintentional mis- takes and honest confusion understandably creep into the minds of participants to a surcharged and antagonistic con- versation such as occurred here. Furthermore, honest mis- understandings can arise under such circumstances when it is considered that the witnesses testified from memory as to statements made more than 1 month before they testified in this proceeding. Then too, it must be remembered that vari- ous witnesses may give different accounts of the same factual situation without being accused of not telling the truth, be- cause differences may reasonably be expected when the sub- ject has to do with semantic interpretations of what they each understood the other speaker to say, particularly when both participants are emotionally involved, as, the record shows Nanez and Victor to have been, and their testimony so indi- cates. This, it is believed, was reflected in what appears to be a misinterpretation or mistake on the part of Nanez in what he believed Victor was saying to him had previously occurred at the trial, due to his faulty understanding of the legal as- pects of what Victor was explaining to him.42 However, it will be recalled that the two affidavits which Nanez gave to the General Counsel's representative in this proceeding and to the company attorney were strangely inconsistent with respect to the date when Fatool phoned Nanez at the plant to request that he notify Victor that he would be late to work. This is not meant to imply that Nanez, who had difficulty in recalling what was said and the dates critical events in this case occurred, was fabricating, but rather that he was, in some instances, to put it charitably, mistaken or confused. However, as indicated above, the manner in which Nanez testified and his version of what was said by Victor neither imbued, instilled, nor suffused me with confidence that Nanez' recital was accurate. On the other hand, it is believed that Victor was an honest and forthright witness, supra. Cogently corroborative of this belief was his unsophisticated and uninhibited frankness when he honestly admitted in his testimony quoted in ex- tenso, supra, that he warned Nanez if he should lie when he testified at the instant proceeding that he (Victor) would not be "surprised" if Nanez would no longer be with the Com- pany within a year. This candidly conscientious display of integrity on his part when contrasted with the normal work- ings of human nature, as shown by some witnesses in similar situations which I have observed in other adversary proceed- ings, did not display the probity manifested by Victor in this proceeding. This practical consideration has led me to place considerable credence upon Victor 's testimony as it is be- lieved he was impelled to tell the truth regardless. of what consequences might eventuate. However, Victor's warning to Nanez that he had better tell the truth when he testified at the trial because if he did not, he "would not be surprised if you were no longer with the Company," was a violation of Section 8(a)(1),43 However, there is not a scintilla of creditable and probative evidence that Victor told Nanez that his union activities and appearance at the trial as a witness prevented him from re- ceiving a promotion. The record reveals the General Counsel failed to establish by a preponderance of the creditable evi- dence that the promotion review of the 18 applicants for the one vacancy was conducted in a discriminatory manner. On the contrary, the evidence shows that four technicians includ- ing Nanez, received "excellent" ratings. Nor was there any evidence introduced by the General Counsel which reflected adversely on the conduct of the review given the 18 applicants for promotion to the one vacancy. In the absence of any evidence to the contrary, it must be held that the review was conducted in a proper and nondiscriminatory manner within the meaning of the Act. Accordingly, it is recommended that these allegations of the amended complaint be dismissed. 41 Resp Exh 17, dated April 26, 1974, from Respondent to Nanez "as- 42 See the quoted testimony above sures" him he will neither be denied a promotion nor discharged because he 43 Saunders Leasing System, Inc, 204 NLRB 448 (1973) enforcement should testify Nanez testified on May 15-16 denied 497 F 2d 453, 458-459 (C A. 8, 1974). GUIDANCE & CONTROL SYSTEMS DIV., LITTON 221 CONCLUSIONS OF LAW 1. By threatening an employee with job reprisal if he did not tell the truth at a Board-hearing, Respondent has inter- fered with, restrained, and coerced the employee in the exer- cise of his rights guaranteed in Section 7 of the Act, in viola- tion of Section 8(a)(1) of the Act. 2. Respondent did not violate the statute by any other conduct alleged in the complaint, as amended, except as found above. Upon the foregoing findings of fact, conclusions of law, and the entire record, there is issued the following recom- mended: ORDER44 Respondent Guidance & Control Systems Division, Litton Systems, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening any employee with job reprisal should he fail to testify truthfully in a National Labor Relations Board hearing. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Post at its Guidance & Control Division plant in Wood- land Hills, California, copies of the attached notice marked 44 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. "Appendix."41 Copies of the notice, on forms provided by the Regional Director for Region 31, after being duly signed by an authorized representative of Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices - are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writing, within 20 days fron the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges other unfair labor practices not found herein. as In the event that the Board's 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 threaten any employee with job reprisal should he fail to testify truthfully at any National Labor Relations Board hearing. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National ' Labor Relations Act. GUIDANCE & CONTROL SYSTEMS DIVISION, LITTON SYSTEMS, INC