ASC Industries, Inc.

ASC INDUSTRIES, INC. ASC Industries, Inc. andUnited Rubber, Cork, Lino- leum & Plastic Workers Union, Local 703, AFL-CIO. Case 20-CA-9004 April 10, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On September 30, 1974, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 and to adopt his recommended Order as modified herein. 1. The Administrative Law Judge found and we agree that Respondent violated Section 8(a)(1) of the Act by Supervisor Roberts' telling employee Henry Vargas that because of his low seniority his job would be jeopardized if he joined the Union.' 1 In his separate opinion herein, Member Kennedy states that the Ad- ministrative-Law Judge erred in denying Respondent's motion to strike the entire testimony of alleged discrimmatees Weese and Dias because they refused to testify about their alleged use or sale of marijuana on Respon- dent's premises on the grounds of self-incrimination We believe that Mem- ber Kennedy errs in not adhering to the well-established rule of "not pass[ing] upon a constitutional question although properly presented by the record; if there is also present some other ground upon which the case may be disposed of." Brandeis, J, concurring in Ash wander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936); accord: Alma Motor Co. v Timken- DetroitAxle Co., 329 U S. 129, 136 (1946) Inasmuch as we find that Weese and Dias were not discharged in violation of Sec. 8(a)(3), we find it unneces- sary to pass on this constitutional issue and we intimate no view on the propriety of the Administrative-Law Judge's ruling. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951) We have carefully examined the record and find no basis for reversing his findings We note that-several times in sec. II of his Decision, the Administrative Law Judge refers to pars. 7(a) and 7(b) of the complaint. The context in which such references appear indicates that he intended to allude to the alleged 8(a)(1) violations of pars 6(a) and 6(b), respectively, rather than the alleged 8(a)(3) violations of pars. 7(a) and 7(b) 3 In the absence of exceptions, we adopt pro forma the Administrative Law Judge's findings that Production Foreman Roberts' asking Assistant Leadman Tugmon to seek votes for Respondent and Leadman Jerry Dias' questioning his cousin, Kenneth Dias, regarding his union sympathies did not constitute violations of Sec 8(a)(1) of the Act. As to the latter finding, we note that the General Counsel stated on the record that he sought to 323 2. The Administrative Law Judge also found that Respondent discharged Alva D. Weese, Kenneth 'Dias,' and Dennis L. Pruitt in violation of Section 8(a)(3) and (1) of the Act. We find merit in Respon- dent's exceptions to these findings. For, we conclude that in each instance the General Counsel failed to carry his burden of showing that the discharge was unlawfully motivated. The facts are fully set forth in the attached Decision. The Administrative Law Judge recognized that the evi- dence showed little concerning Respondent's degree of opposition to the Union and found that the sole in- dependent violation of Section 8(a)(1) consisted of the statement to employee Vargas summarized in para- graph 1, above. Nevertheless, the Administrative Law Judge "[found] a thread of discriminatory intent pre- sent .. ." and stated that he believed this was nurtured during the Union's organizational campaign which cul- minated in its loss of the Board-conducted election. This, in turn, was apparently grounded on the said coercive statement to Vargas early in January 1974; the timing of the discharges shortly after the issuance on February 11, 1974, of the certification of the results of the election which concluded the proceedings in the representation case; and the Administrative Law Jud- ge's disbelief of Respondent's defense to each of the three discharges. While we have, in appropriate situa- tions, looked to all of these factors, something more is required than is present in this case to justify the infer- ence of unlawful motivation and its continuing influ- ence on the Respondent's actions. That "something" is strong animus toward the Union and its adherents. Here the single coercive statement early in the cam- paign does not warrant finding the necessary animus, nor can it show a "thread" which denotes a continuing course of conduct. Further, there is no indication by the Administrative Law Judge why he concluded that the timing of the discharges following the certification of results was suspicious. With respect to Weese and Dias, there is little doubt that on the day of discharge they were performing little work of any kind and it is not denied that Dias did in fact leave the plant early and return late (the precise hour is in issue) without punching his timecard. There is also no doubt that oral and written complaints had been made that Weese was standing around idle while other employees worked. The Administrative Law Judge "discounted" records of misconduct by these men because he found them "contrived in origin," but there is no support in the record for this conclusion and it does not comport with the undisputed testimony of introduce this evidence only to show Respondent's knowledge of Kenneth Dias' union sympathies 4 Weese and Dias were supervised by Leadman Jerry Dias, a cousin of Kenneth Dias. In order to avoid confusion, Kenneth Dias is referred to herein as Dias and Jerry- Dias is referred to as Jerry Dias. 217 NLRB No. 53 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 'individuals who wrote the entries and testified to their authenticity.' Finally, as to Dias, the Adminis- trative Law Judge-found him an unsatisfactory em- ployee but concluded that he was discharged "in a concerted, indivisible action that was designed to strike primarily at Weese." But there is no evidence in the record to support even an inference that Respondent was so motivated in discharging Dias or that the con- current discharge of the two men was more than coinci- dental. Concerning Pruitt, the same general infirmities exist in the proof' dduced" by the General Counsel. Thus, in finding pretextual the Respondent's asserted reason for terminating Pruitt, i.e., his poor attitude and inabil- ity to work well with others, the Administrative Law Judge placed great weight on the fact that this em- ployee had repaired a major equipment defect with which even more experienced personnel were having difficulty . This, however, does not rebut Respondent's claim that Pruitt had an abrasive personality and is insufficient to warrant a conclusion that Pruitt was terminated for unlawful reasons rather than the one advanced by Respondent.' In sum, we find that the General Counsel has failed to establish by a preponderance of the evidence that Respondent was unlawfully motivated in terminating Weese, Dias, or Pruitt . Accordingly, we shall dismiss the complaint insofar as it alleges that they were dis- charged in violation of Section 8(a)(3) and (1) of the Act. 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 as modified below and hereby orders that Respondent, ASC Industries, Inc., Visalia, California, its officers, agents, successor, and assigns, shall take the action set forth in the said recom- mended Order as herein modified: 1. Delete paragraphs 1(b) and 2(a) and (b) and relet- ter remaining paragraphs accordingly. 5 We find merit in Respondent's contention that the Administrative Law Judge misallocated the burden of proof in implying, in In. 15 of the attached Decision, that the burden was on it to introduce other employees' written warnings in order to support the authenticity of these documents 6 As to the absence of evidence of union animus, we note that the Vargas incident occurred at a different plant from the one in which Pruitt worked, and there is no basis for attributing to Pruitt's supervisors the statement itself or the antiunion attitude which it conveyed. 7 The Administrative Law Judge sets forth the fact that at the time of his discharge Pruitt was told by Plant Foreman Johnson that he was terminated for not having "a company type attitude for the past two months," and it is true that reference such as this could well be to union activities and in many other cases has been found to have that meaning. But in the absence of some evidence to justify this interpretation, we cannot so find here, and this fact at best raises a mere suspicion which is not sufficient upon which to base a finding of unlawful conduct. 2. Substitute the attached notice for the Administra- tive Law Judge's notice. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not found herein. MEMBER KENNEDY , concurring in part and dissenting in part: I concur with my colleagues in their dismissal of the 8(a)(3) allegations regarding Alva Weese, Kenneth Dias, and Dennis Pruitt. However, as to Weese and Dias, I dissent from the failure to strike their testimony because these two alleged discriminatees refused to an- swer on cross-examination questions which were rele- vant to Respondent's defense. From January 1, 1973, through November 13, 1973, Respondent reported 68 industrial accidents to its workmen's compensation carrier . Injuries ranged from cut fingers to broken bones. During this same period, Production Manager Christensen learned from several employees and supervisors that a number of employees were under the influence of marijuana while on the job. One employee told Christensen that the plant was un- safe because of marijuana being used in the plant and quit for fear of his safety . The problem was so bad that Christensen contacted the police department to obtain information and literature, and the police began inves- tigation which was still continuing as of the time of the hearing. In November or early December 1973, Chris- tensen posted a notice to all employees concerning the use of drugs. The notice stated that there was a serious problem concerning the use of drugs in the plant and that the use of drugs was causing a safety problem. The notice also repeated a company rule against the use of drugs and stated that a breach of the rule would be cause for immediate dismissal.' On the day of the discharges in question, Christensen went to speak to Weese and Dias. As he walked in the shipping and receiving area, Christensen noticed a large painting of a marijuana leaf on a toolbox. Chris- tensen was angry since he considered the painting an affront to the Company's campaign against drugs. 8 The notice read It has been brought to our attention that we have a serious problem in both plants regarding the use of drugs. The company cannot and will not tolerate the use of drugs by em- ployees while they are on duty or under the influence when reporting to work. Company rule #20 posted on all bulletin boards states that: 20 Bringing intoxicating liquors or drugs into the plant, or reporting to work under the influence of the same This is a breach of company rules and is cause for immediate dismissal. We intend to comply with that rule. In order to combat this serious situation we need the help of all em- ployees. Remember the use of drugs and machinery do not mix. If you can save some one from being injured seriously you are doing this individual a big favor. We plan to do everything necessary to bung this to a stop immediately ASC INDUSTRIES, INC. Christensen suspected the painting was the work of Weese and Dias, immediately reviewed their personnel files, and decided to terminate both of them.9 Dias was asked on direct examination concerning the marijuana leaf painting on the toolbox. On cross- examination, Respondent's counsel asked him if he ever used or possessed marijuana while working on company premises. The Administrative Law Judge overruled the General Counsel's objection on the grounds of relevancy. Dias declined to answer on the grounds of the fifth amendment to the United States Constitution. Respondent's counsel also asked Weese whether he or Kenneth Dias ever possessed marijuana on company premises. Again the Administrative Law Judge over- ruled the General Counsel's objection on the basis of relevancy. Like Weese, Dias declined to answer on the grounds of the fifth amendment to the United States Constitution. During the hearing, Respondent requested special permission from the Board to appeal the ruling of the Administrative Law Judge denying his motion to strike the testimony of Weese and Dias. By telegraphic order dated June 13, 1974, the Board denied Respondent's motion without prejudice to Respondent's right to renew its motion in any exceptions filed with the Board. I dissented stating that I would strike the testimony of Weese and Dias since I believed that further expendi- ture of funds on behalf of individuals who refuse to answer cross-examination questions relevant to Re- spondent's defense on the ground of self-incrimination is unjustified. I believe that the testimony of Weese and Dias should have been stricken from the record. Had the motion to strike been granted, then litigation concern- ing their discharges would have ended at that point with dismissal of the complaint. Substantial expenses have been incurred by this Agency and by the parties because of the failure to strike the testimony of the dischargees. Previously, my colleagues expressed a proper concern for the expenditure of this Agency's funds in Modine Manufacturing Company, 203 NLRB 527 (1973). In that case they stated: We must, for example, consider the prudent hus- bandry of the funds appropriated to us for admin- istering this Act, and also the effect on our promptness in handling not only the matter before us but also the handling of the myriad other mat- ters regularly brought to us for action by citizens entitled so to do. The concern for our resources which was articulated by my colleagues in Modine is also applicable here. I 9 On cross-examination, Dias admitted that he had spent about 2 hours of working time painting the picture of the marijuana plant on the toolbox 325 perceive no justification for expending our funds and burdening our decision-making processes where dis- chargees refuse to answer proper cross-examination questions relevant to a respondent's defense. Here, my colleagues avoid deciding what they de- scribe as a "constitutional" issue" by concluding that the complaint allegations have no merit. They chide me for ruling that the testimony of the alleged 8(a)(3) dis- criminatees should have been stricken at trial. In my view, this issue should be decided. What guidance do my colleagues give to our Administrative Law Judges, to members of the bar, and to witnesses in our trials by avoiding the issue? How much more unnecessary litiga- tion and expenditure of funds must take place for my colleagues to reach the issue and decide it? However, even without striking their testimony, I agree with the majority that Weese and Dias were not discharged in violation of Section 8(a)(3) and (1) of the Act. To conclude that these discharges were "suspi- ciously timed" without any evidence of a desire on the part of the Respondent to rid itself of union adherents is to engage in bootstrapping which would eliminate the requirement to prove an illegal motive. Absent a basis for finding such animus as would warrant the inference that the Respondent would resort to dis- charging employees in order to rid itself of union advo- cates, the Administrative Law Judge's belief that the reasons given were not the true grounds for termination is irrelevant. The Administrative Law Judge also reasoned that, because Leadman Jerry Dias was aware of the painting for several months, Weese's painting of a picture of a marijuana leaf on a company toolbox was not a reason for Assistant General Manager and Production Manager Christensen's decision to discharge Weese. However, it is undenied that Christensen was not pre- viously aware of the marijuana leaf painting . Leadman Jerry Dias' inaction does not establish condonation by Christensen, nor is the Administrative Law Judge's view that Leadman Jerry Dias was more responsible than Weese for the continued presence of the painting entitled to probative weight. I join my colleagues in their finding that the Ad- ministrative Law Judge misallocated the burden of proof by implying that the burden was on Respondent to introduce other employees' written warnings in or- der to support the authenticity of those documents. However, this same finding should also apply to foot- note 12 of the Administrative Law Judge's Decision to the extent that it implies that the burden was on Re- spondent to introduce shipping records to support its claim that no trucks were loaded by Weese and Dias on the morning of February 12. Moreover, I would dismiss the allegation that Super- visor Roberts threatened employeee Vargas (in the 326 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD presence of Leadman Camp) in violation of Section 8(a)(1) of the Act when Roberts replied to an inquiry by Vargas about the consequences of unionization by saying he would assume that, because Vargas was low on seniority, he might have a seniority problem if he joined the Union and that he could be laid off. Even assuming that the statement is a violation of Section 8(a)(1), it is isolated and technical, involving one super- visor responding to a query by one employee in a unit complement of 68 employees and therefore does not warrant a remedy. American Federation of Musicians, Local 76 AFL-CIO (Jimmy Wakely Show), 202 NLRB 620 (1973). For the foregoing reasons I would dismiss the com- plaint in its entirety. APPENDIX NOTICE To- EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with loss of their jobs because of their membership in or activ- ity on behalf of United Rubber, Cork, Linoleum & Plastic Workers Union, Local 703, AFL-CIO, or any other union. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the exercise of rights under Section 7 of the Act. ASC INDUSTRIES, INC DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard<at Fresno, California on May 30 and 31, June 3, and August 14, 1974' based on charges filed March 1 and April 15 and complaint issued April 24 and amended orally at commencement of hearing. The amended complaint al- leges that ASC Industries, Inc., called Respondent, violated Section 8(a)(l) and (3) of the Act by threatening the employ- ment tenure of employees because of their membership in, or activity on behalf of, United Rubber, Cork, Linoleum & Plas- tic Workers Union, Local 703, AFL-CIO, called the Union, by soliciting an employee to encourage fellow employees to vote against the Union and by discharging employees Alva D. Weese, Kenneth Dias, and Dennis L. Pruitt because of their 1 The hearing on August 14 was occasioned by theft from the court reporter of materials upon which the record for June 3 would have been based Proceedings on August 14 involved repeat testimony by witnesses originally called June 3 and reintroduction of exhibits received that earlier date The record of this case, therefore, consists of matter heard and re- ported May 30 and 31 and August 14 only. All dates and named months hereafter are in 1974, unless indicated otherwise. membership in, or activities on behalf, of the Union, or be- cause they egnaged in other concerted activities. Upon the entire record in this case, including my observa- tion of the witnesses, and,on 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 with facilities located in Visalia, California, engages in the manufacture of aluminum irriga- tion tubing and plastic irrigation pipe. It annually purchases goods valued in excess of $50,000 for use in business opera- tions there and receives these goods directly from suppliers located outside the State of California. 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES Facts and Discussion On December 3, 1973, the Union filed a representation petition covering an estimated 68 employees at Respondent's aluminum plant and plastics plant. These are physically sepa- rate factory buildings located approximately one-quarter mile apart with Assistant General Manager and Production Manager Ervin C. (Chris) Christensen in charge of both. The aluminum plant houses main offices, tube forming mills, and the pipe fabrication function, with both primary production operations supervised directly by Production Foreman Bobby Jack Roberts. Plastics operations are supervised by Plant Foreman Edward R. (Bob) Johnson from an office at those premises, where single and twin screw extruder machines are utilized along with related compounding and grinding equip- ment. Each facility operates on a multishift basis with ship- ping and receiving services provided by a single department which was supervised at times material to this case by Lead- man Jerry Dias. Proceedings followed on the representation petition, an election was conducted February 1, and results only were formally certified on February 11. Weese was hired in January 1971, and worked successively as laborer and forklift operator before becoming assistant leadman for shipping and receiving at the aluminum plant approximately September 1972. He testified to signing a union authorization card in November 1973, discussing the Union with other employees, wearing a union button (or buttons) and sticker simultaneously each day for a week prior to the election, and serving as the Union's election observer for the aluminum plant. Weese recalled that on February 12 he worked loading "a couple" trucks and continued an en- deavor begun the day before of permissibly, building a wooden storage shed. At or about 2 p.m. Jerry Dias approached as Weese worked along with Kenneth Dias and Fred Davis (the latter ordinarily assigned shipping and receiving duties at the plastics plant). Jerry Dias said Christensen felt they should "quit screwing around with the shed," that it was not to be built on "company time" and there was a truck to load. ASC INDUSTRIES, INC. 327 Christensen soon appeared and after Jerry Dias conversed with him, Weese and Kenneth Dias were told by Jerry Dias that they were fired. Kenneth Dias was hired in' February 1973 as a laborer and later became a forklift operator in shipping and receiving at the aluminum plant. He testified to signing a union card in November 1973, discussing the Union with other employees on plant premises, attending union meetings, wearing two Union buttons and a sticker simultaneously from mid-Janu- ary until the election, and stating, when asked by his cousin Jerry Dias, that he would vote for the Union. He recalls leaving work on February 12 shortly before noon nad return- ing at 1 p.m. without punching his timecard in either instance.2 He resumed work on the storage shed until 2 p.m., when loading duties arose. While engaged in preparing to load Jerry Dias informed him that he and Weese were both fired for "standing around." Pruitt originally worked at Respondent's aluminum plant from March 1971 until layoff in August 1971. He was again hired in September 1972 and within a month became an extruder machine operator tramee at the plastics plant. He testified to signing a union card in December 1973, distribut- ing union cards to six of seven other employees , discussing the Union with other employees, and serving as the Union's election observer for the plastics plant. On February 18 he arrived for work at the 3:30 p.m. start of afternoon swing shift. Johnson immediately approached and informed him of being discharged for not having "a company type attitude for the past two months." Pruitt protested to Christensen who expressed an understanding that Pruitt had made bad state- ments against the Company and mocked other employees. Christensen decided the discharge of both Weese and Kenneth Dias, then directed Jerry Dias to carry out such action. Early February 12, Roberts had voiced a complaint to Christensen about Weese and Kenneth Dias habitually standing around idle while other employees worked. Chris- tensen proceeded to watch them the balance of that morning. Their presence in the loading area was within view from his office window. He testified to seeing them warm themselves frequently by an open fire but do very little work. Be ob- served Kenneth Dias leave the plant area around 11 a.m. and not return until approximately 2 p.m. At this point Roberts brought in the timecard of Kenneth Dias pointing out it had not been punched out or in. Christensen determined to deal with the situation through Jerry Dias and went out to the loading area where he noticed for the first time what ap- peared to be the depiction of a marijuana plant leaf painted on a company toolbox. This particularly angered Christensen as he had attempted for many months to eliminate any drug use by employees at or affecting their work 3 He ordered the marijuana leaf painted over, returned to his office to examine personnel files and on seeing notations of "other problems" returned immediately to the loading area and directed Jerry Dias to fire both employees. Roberts testified that on Febru- ary 12 he had relayed a build-up of complaints about Weese and Kenneth Dias to Christensen. He also identified a per- sonnel notation of his own dated January 15 recording that he had spoken to Jerry Dias about the practice of Weese and Kenneth Dias "... standing around bothering other em- ployees and keeping them from doing [their] work." Roberts recalled receiving other written notations on the subject from Fabrication Leadman Danny Rivera and promptly turning them over to Christensen. Rivera testified that on specific dates in mid-December 1973 and late January 1974 he sepa- rately wrote out an observation of both Weese and Kenneth Dias standing and talking to fabrication employees. Tube Mill Leadman Jerry Kemp testified that on two occasions in late January he wrote out an observation of Kenneth Dias alone and then Kenneth Dias with Weese talking to mill employees for a number of minutes, thus "slowing down" or "hindering" production. He recalled that the talking ended in both instances when he motioned for such congregating to break up. Roberts also handled the filing of Kemp's writeups. Rivera recalled that the December writeup to this effect was supplemented on the same pieces of paper by the January writeup after requesting the sheets back from Roberts and receiving them out of his (Robert's) office files. Within this overall context Christensen testified that his specific reason for discharging Weese was based on considering him respon- sible for the painted marijuana plant leaf and that the specific reason for discharging Kenneth Dias was failure to punch his timecard that day. Johnson effected the discharge of Pruitt based on a belief of continuing unsatisfactory attitude . Johnson testified this was first manifested around October 1973 with a complaint from employee Walter Pope that Pruitt had failed to relieve him over a continuous 7-hour period.' Johnson (Bob) issued a verbal warning to Pruitt at the time in the presence of Leadman Steve Johnson adding that a further complaint ex- isting at the time concerned Pruitt not helping employee Roy Humphreys on the skids. About 2 days later, midnight shift Leadman Richard Foote reported to Bob Johnson that em- ployees of that shift were complaining of Pruitt "not cleaning up . . . more than once."5 In an incident placed by Bob Johnson as subsequent to the union election, the daylong malfunctioning of an extruder machine was corrected soon after the afternoon shift arrival of Steve Johnson and Pruitt. Bob Johnson had followed efforts to correct this malfunction but was unable to determine who, as between Steve Johnson and Pruitt, had known of exact corrective steps needed. Upon resumption of proper machine functioning, Bob Johnson ob- 2 Kenneth Dias testified he had customarily left work early several times a week and was once told by Jerry Dias to "knock off" or "cool" the practice. 3 Christensen testified to taking his concern about drug usage to local police authorities who counseled him on the subject and provided literature In late 1973 Christensen had caused posting of a bulletin board notice which reiterated a stringent company rule against possession or use of drugs as such would influence the performance of employees' duties Respondent introduced into evidence its 1973 industrial accident/loss record which Christensen had sought to improve upon by better employee awareness through creation of a safety committee. Finally, Christensen testified to having suspicion, but no proof, that Weese had been influenced by drug usage while at work and Kenneth Dias was a possessor ^ Transcript corrections noted in the record. 5 In late 1973 Foote was working an overtime shift that overlapped Pruitt's. Foote testified that operators of his own shift, as well as Pope and Humphreys, complained about a lack of expected assistance from Pruitt Foote relayed these complaints to Bob Johnson as they arose in late 1973 adding that Pruitt appeared to have lost interest in his job by such conduct and a statement to Foote that he (Pruitt) was looking for other work. Foote had no occasion to discuss Pruitt with Bob Johnson subsequent to December 1973. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD served Pruitt make a remark to dayshift Leadman John Pit- man that caused a "miffed" expression in the latter. The following day Pitman voiced a dislike to Bob Johnson of having Pruitt ". . . saying anything about his people" which Bob Johnson advised be forgotten or taken "with a grain of salt." Bob Johnson testified that this incident did, however, cause -him to commence watching the work of Pruitt and upon noticing a continued poor attitude concluded, after re- flection, that he should be terminated. After first informing 'Christensen of his intention by telephone, Bob Johnson inter- cepted Pruitt as he reached work the afternoon of February 18 to advise he was no longer employed because of "attitude and his unsatisfactory performance." Pruitt denied that his manner of performing his duties worsened or that he told anyone he had lost interest in his job. Further, Pruitt testified that upon correcting the machine malfunction he remarked to Bob Johnson ". . . why don't you move me to dayshift [or something of that nature]." Respecting paragraph 7(a) of the complaint, former em- ployee Arturo Vallejo testified that during late December 1973 he conversed along with Roberts who stated Respond- ent was ". . . going to get rid of the guys that are supporting the Union." Roberts denies this, recalling a December 1973 conversation with Vallejo dealing only with the circum- stances of the latter's angrily quitting in connection with work assignment. Respecting paragraph 7(a) of the complaint further, employee Henry Vargas testified that he conversed with Roberts during early January and the latter stated that unionization could possibly cause Vargas' loss of employment from the superior seniority of plastics plant employees. This conversation also dealt with the effects of possible strike ac- tion by a union should it come to represent Respondent's employees, and as to this Roberts described how present supervisors might perform production classifications to con- tinue operations. Roberts testified that this conversation with Vargas occurred in the presence of Kemp and resulted from Vargas' inquiry about the consequences of unionization. Rob- erts recalled stating that Respondent could operate if a strike occurred by individuals in management and supervisory posi- tions performing the production and laboring jobs many had held at earlier periods of their employment. Additionally, Roberts testified to saying he knew very little about unions "seniority wise" but would assume that because Vargas was low on seniority he might have a seniority problem "if he joined the Union," and that he could be laid off. Kemp testi- fied the conversation arose when Vargas came into Roberts' office (also shared by Kemp and Rivers) for a gasket. While Kemp was getting this, Vargas and Roberts engaged in a discussion'of what would occur should a union strike Re- spondent in the future. On this point, Kemp recalled Roberts only describing how Respondent might continue operations with use of experienced office or-supervisory personnel. Addi- tionally, Kemp recalls the subject of seniority being injected with Roberts saying that "some [jobs] could . . . be done away with . . . in case the union came in." Respecting paragraph 7(b) of the complaint, employee Robert Tugmon testified that during late January he con- versed alone with Roberts who asked him "to talk to the other employees about voting no on the Union." Tugmon declined and nothing further was said. Roberts recalled this conversation and his feeling at the time of being able to speak freely since Tugmon was an Assistant Leadman in welding. Roberts asked Tugmon if he would "take it upon himself" to "get a yes vote for the Company" and heard Tugmon answer "No." Relatively little has surfaced from the evidence in this case concerning Respondent's degree of opposition to the Union. Considering the near-continuous operations occurring at two physically distinct locations, the specific episodes described by witnesses for General Counsel are extremely limited in frequency, and, in part, without coercive content. I discredit the testimony of Artura Vallejo, as it seems unreliable. Ac- cordingly, I do not find (as has been denied by Roberts) the utterance of a threat to rid Respondent of Union supporters. The incident of Tugmon being asked by Roberts to seek votes for Respondent did not exceed the latitude permitted an em- ployer in opposing a unionization effort. The solicitation of Tugmon was free of menacing tone, was simply dropped when he decided, and did not breach any doctrinal limits. Other matters, such as establishment of what Pruitt testified was a grievance committee and granting improved employee locker facilities, are without probative value to the question of whether Respondent possessed animus of influencing extent.' Exchanges between Kenneth and Jerry Dias were innocuous discussions between persons engaged in un- guarded discourse appropriate to their kinship. Weese testi- fied to certain interrogation by Christensen occurring in late January. This conversation was uncoercive in nature and did not have the probing insistence characteristic of violative conduct in such a regard. On the other hand, Henry Vargas was subjected to coercive remarks as is clearly shown from a composite of his, Roberts', and Kemp's testimony. During the early January conversa- tion in Roberts' office, this supervisor did project the loss of jobs that might stem merely from unionizing, and, more pointedly, that Vargas himself would jeopardize his position by joining.' I conclude that evidence as a whole supports the allegation in paragraph 7(a) of the complaint Weese and Pruitt functioned in open advocacy fashion as union observers on February 1. Kenneth Dias openly wore a union button causing comment between Kemp and Rivera, both admitted agents of Respondent, as early as December 1973.$ From the standpoint of every significant avenue of evaluation the discharges at issue here are suspiciously timed, bear a contrived appearance, and are without sufficient cause. First is the question of timing. Weese was discharged the very day following conclusiveness attaching to the election results. Pruitt followed within a week, and the chosen date (a 6 The record permits finding that what Pruitt perceived as grievance meetings was what Respondent intended as safety meetings In either event there was timely discontinuance and no evidence to show an improper motivation in this regard ' A second conversation concerning unionization affecting Vargas' net earnings and employment benefits was not of threatening tone I credit Roberts' testimony on this point finding his recollection more impressive that Vargas' inquiry was for clarification of existing employee benefits and that Roberts performed calculations based on mere hypothetical assumption of future change General Counsel declined to litigate -this matter as a separate 8(a)(1) allegation. 8 An estimated 20-25 other aluminum plant employees wore union but- tons, a fact that leaves Kenneth Dias, from his conduct alone, no more conspicuous than half his coworkers. It does, however, establish specific knowledge of Kenneth Dias' apparent sympathies as this factor must be evaluated with the total circumstances of the case. ASC INDUSTRIES, INC. Monday) is particularly significant as his discharge was os- tensibly based on contemplative determination, rather than claimed sudden incident. Secondly, Respondent's reasons for discharging Weese and Kenneth Dias are wholly unconvincing. While documenta- tion exists concerning them standing around and talking, this branch of Respondent's case is suspect. Supposedly Rivera recorded two instances of this dereliction, Kemp recorded one for Weese and two for Kenneth Dias, and Roberts re- corded his caution to Jerry Dias on January 15 that this behavior was occurring. There is no explanation as to why they were not confronted with these reprimands, nor showing that they themselves at least were not on breaktime. There was no testimony from immediate Supervisor Jerry Dias that might tend to authenticate a growing pattern of job deficiency in this regard.9 Finally, the associated testimony of Rivera and Roberts concerning the forwarding of Rivera's recorda- tions, clashes with Christensen's testimony that on February 12 he had occasion to pull the personnel records of Weese and Kenneth Dias and be startled to see several "items" in the file. Had Roberts in fact placed the documents in Christensen's office as they were first written, and obtained them from Christensen for the second (January 21) entry on the same piece of paper, there would have been awareness on this noted date and not as an initial motivating matter, as Christensen testified only on February 12.10 Unconditional permission to work on the storage shed had been obtained and regarding the painted marijuana plant leaf the existence of this depiction, even assuming its unwarranted and undesirable presence on Respondent's business property, was no more the responsibility of Weese than of Jerry Dias.11 As to events the morning of February 12, Chris- tensen testified he saw no loads go out while keeping the area under scrutiny while Weese believed "a couple" trucks were loaded and I credit his recall. 12 Pruitt's case is most compelling of all. Respondent has assigned a "poor attitude" to him, yet the only testimony realistically tending to establish such a factor relates to Octo- ber 1973. There are many flaws in the reasons advanced for Pruitt's discharge. Steve Johnson, best situated to assess Pruitt's attitude, did not testify. Instead much reliance was placed on the testimony of Pope whom I discredit because of his demonstrable bias and questionable recall. Foote had lim- 9 Christensen testified he twice told Jerry Dias to warn the two em- ployees. He does not know if it was done and Jerry Dias, although appar- ently not conveniently available to Respondent for purposes of testifying on August 14, was not called on June 3 prior to his own termination as Lead- man. ID Kemp's writeups do not bear this same infirmity The record does not place them as reaching a file under Christensen 's personal control Further, Kemp testified to having "problems" with Weese and Kenneth Dias on "a few different occasions" which he believed first arose in late December 1973. This harmonizes with Roberts' claim of writing his January 15 nota- tion because of complaints from , but not limited to, Kemp. 11 While Weese was physically present at the aluminum plant loading yard area approximately twice the amount of time as Jerry Dias, his authority as Assistant Leadman was subordinate and without color of true supervisory status With uncontradicted testimony to the effect that the toolbox stood so painted for several months, the more natural basis to assess responsibility for condoning its presence would be against Jerry Dias. 12 No effect was made to establish by shipping documentation an absence of loads out that morning, nor was any claim advanced that such proof was unavailable Weese conceded having one warning for "standing around" but neutralized this by asserting he had been "helping" at the time. 329 ited involvement during the fall months, and none after December. The malfunctioning extruder machine incident is placed by Pruitt in January and by Bob Johnson as occurring after the election. Regardless of point in time, there was little reason to fault Pruitt in this 'regard. From what is known, Pruitt did diagnose the cause of difficulty, readily corrected it, and spoke only jokingly to Bob Johnson and Pitman. Bob Johnson himself squelched Pitman's chagrin and this minor bantering pales beside the salient fact that' Pruitt alone, thought volunteered job knowledge, solved an equipment de- fect of major significance to the plastics plant's entire func- tioning. To this brand Pruitt as one of poor attitude inescapa- bly leaves the conclusion that Respondent used these words only to hide another reason.l3 In sum, I find a thread of discriminatory intent present from the evidence, believing this was nurtured during the several months taken by the unsuccessful organizing effort and applied at a propitious time with pretextual reasons given in response to the charges filed. This is an inferential finding based specifically on the sudden discharges of Weese and Pruitt against the background of another unfair labor prac- tice and contentions substantially without merit as a matter of business justification or the realities of industrial employ- ment. An employer's agents have the latitude to act in anger or to determine what is, or is not, an acceptable attitude toward one's job. I do not quarrel with such rationale in the abstract, but only as applied in this situation where the cir- cumstances shown as a preponderance of credible evidence compel me to disbelieve Respondent's defense. For 3 years Weese had performed to Respondent's satisfaction." While acceleration of union organizing activities can change an em- ployee's job outlook or lead to changed work habits, such is not shown to be the case here, and I specifically discount Respondent's Exhibits 2, 3, and 4, as contrived in origin or falsely advanced to represent materials influencing the dis- charges of February 12 as then determined." I find Pruitt committed no criticizable offenses at any time during 1974 and the lag between his discharge and earlier ones merely reflected Respondent's random choice of a time to act. Kenneth Dias was not an exemplary employee. He deliber- ately disregarded the request of his Leadman to discontinue the practice of leaving work without punching his timecard and rather foolishly described his painting of the toolbox as an attempt to comply with his understanding of "keeping busy" when other tasks did not immediately call Neverthe- less, Respondent's action against him is inextricably con- nected with Weese's case, and while logic might permit a valid defense as to Kenneth Dias, I believe that in reality 13 Assuming the truth of Pruitt's reported interest in other employment, I find no genuine ring to Respondent 's assertion that this was influential in Bob Johnson's appraisal Neither is it significant that Pitman , as a conduit of information to Bob Johnson, aliso considered unaffected employees Pope and Humphreys to be Union supporters. 14 No weight is accorded G C Exh. 6 and 7 as the content of these employment verification requests are too remote to bear on issues dealt with here is Respondent's Leadmen testified to preparing employee writeups in the past but none were produced to support the authenticity of this technique. Rivera estimated he had written 12 over the years when he had "trouble" and Kemp recalled writing four or five similar documents when employees were "talking to [his] men." Kemp's writeups assertedly led to discharge in three of four instances, however only the name of Rudy Cano could be recalled from this group. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent made no saving distinctions and discharged Kenneth Dias in a concerted, indivisible action that was de- signed to strike primarily at Weese. Stated another way, I believe Respondent had some measure of good cause to dis- charge Kenneth Dias but acted with mixed motivation and otherwise specifically determined to discharge him at the same moment of, and in connection with, unlawful pretextual action concerning Weese. CONCLUSIONS OF LAW 1. Respondent, by threatening the employment tenure of employees because of their membership in, or activity on behalf of, the Union, and by discharging employees Alva D. Weese, Kenneth Dias, and Dennis L. Pruitt, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. 2. Respondent has not violated the Act in any respect other than as specifically found. REMEDY Distinctions involved in my reasoning concerning Kenneth Dias do not affect his entitlement to full remedial relief. -I shall recommend that Respondent cease and desist from its unfair labor practices, that it reinstate Alva D. Weese, Kenneth Dias, and Dennis L. Pruitt with 'backpay as pro- vided in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and post an appropriate notice. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER16 Respondent,'ASC Industries, Inc., Visalia, California, its officers, agents, successors, and assigns, shall: 16 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 In its brief Respondent renews a motion to strike certain testimony. This renewed motion is denied 1. Cease and desist from: (a) Threatening the employment tenure of employees be- cause of their membership in or activity on behalf of United Rubber, Cork, Linoleum & Plastic Workers Union, Local 703, AFL-CIO. (b) Discouraging membership in United Rubber, Cork, Linoleum & Plastic Workers Union, Local 703, AFL-CIO, or any other labor organization, by dis- criminatorily discharging or otherwise discriminating against employees in any manner with regard to their hire and tenure of employment or any term or condition of employment. (c) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Alva D. Weese, Kenneth Dias, and Dennis L. Pruitt immediate and full reinstatement to their former posi- tions, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges. (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time cards, person- nel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (c) Post at Respondent's facility in Visalia, California, co- pies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized represen- tative, shall be posted immediately upon receipt thereof and -be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to em- ployees 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. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of the receipt of this Order, what steps Respondent has taken to comply herewith. 17 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."