V & W Castings

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warren L. Rose Castings, Inc. d/b/a V & W Castings and Michael J. McMurry. Case 21-CA- 15195 August 31, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 29, 1977, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed an answering brief in opposition to General Coun- sel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only as consistent herewith. The Administrative Law Judge found the evidence did not establish that Respondent discharged em- ployee McMurry in violation of Section 8(a)(3) and (1) of the Act. We disagree. The following facts even as found by the Adminis- trative Law Judge are not in dispute: On October 29, 1976, McMurry distributed union literature and authorization cards when he punched in at 7 a.m., at his morning break and during his lunch period. Danny, a leadman, walked within 5 feet of a conversation in which McMurry, during his lunch period, was discussing union dues. On at least one occasion on October 29, Danny and Supervisor Puleo admittedly discussed McMurry and, according to Puleo, Danny pointed to McMurry and reported that he was "bothering some of the guys in the core department, talking to some of them." Puleo testified that an hour after this conversation he told Maxwell, Respondent's vice president, that he wanted to "get rid" of McMurry. Maxwell, who had never before discharged any of the employees in Puleo's area, immediately discharged McMurry without giving him any reason for the discharge or completing the customary personnel change authorization form explaining the discharge.' McMurry had recently received a raise along with the other employees in the core room, and had never received a written warning for absenteeism or for leaving his machine to talk with other employees. The reason for the discharge, according to Maxwell, was McMurry's absenteeism, i Although this form is automatically prepared when an employee is terminated. Puleo could not explain why the form was not prepared when McMurry was discharged. 231 NLRB No. 126 tardiness, and failure to be at his post during working hours. Maxwell testified he refused to give McMurry a reason for the discharge in order to teach McMurry a lesson because McMurry had failed in the past to call in to report he would be absent or late. The Administrative Law Judge credited the testi- mony of Puleo and Maxwell that they were unaware of McMurry's union activity and further found that the discharge was not pretextual. However, the testimony of Puleo and Maxwell is marked by inconsistencies, ambiguities, contradictions, and vague or incredible statements which were totally ignored by the Administrative Law Judge. Specifical- ly, we note: 1. Puleo's testimony of when he spoke to Danny alternated between once, at 10 or 11 a.m.; "lots of times"; 1:30 p.m. (an hour before Puleo's conversa- tion with Maxwell); twice-the second time around 2:25 p.m. (outside Puleo's office); and "I don't know what time that was." The Administrative Law Judge apparently credited the version that the conversation transpired at 10 or 11 a.m. inside Puleo's office. The timing of the conversation or conversations (Puleo gave three versions) is of major importance because, if Danny spoke to Puleo only before lunch, in Puleo's office, he could not have reported McMurry's conversation about the Union which took place after lunch. But of even greater significance, if this version is credited, Danny could not have been pointing to McMurry during the conversation since the office has no windows. Yet, McMurry testified he saw Danny point to him from outside Puleo's office and Puleo admitted Danny pointed to McMurry during the conversation. The Administrative Law Judge made no effort to resolve these obvious discrepancies in Puleo's testimony. 2. Maxwell testified that 2 weeks before the discharge Puleo told him he had reprimanded McMurry for being away from his machine. Puleo, however, testified that he first observed McMurry leaving his machine to talk to other employees on October 22-a week before the discharge-but did not even speak to McMurry about the incident, much less reprimand him. Puleo testified that he had seen McMurry away from his machine only on October 22 and 29. He then testified that he again observed McMurry away from his area "a day or 2 days later" after the October 22 incident, but, when confronted with this inconsistency, Puleo retreated to his earlier statement that he had observed McMurry away from his machine only on October 22 and 29. 3. Puleo and Maxwell testified that a raise was given the department employees in July 1976, while McMurry testified that it was given in September 912 V & W CASTINGS 1976. The Administrative Law Judge credited the version of Puleo and Maxwell that the raise was given in July. However, not only did McMurry testify that he received the raise in September 1976, but Respondent, through the representation of its counsel at the hearing and its statement of position, 2 admitted that McMurry received the raise on September 13, 1976.3 4. Puleo and Maxwell testified that Respondent tolerated absences in May through September because in May Respondent was expanding from 120 to 140 employees. However, Maxwell later admitted that the number of employees had grown only to 123 by December 1976. 5. Puleo testified that on the date of the discharge he stopped Maxwell to point out that McMurry was talking to another employee away from his work area. Maxwell, however, testified that Puleo merely told him that McMurry was away from his machine, but Maxwell did not see McMurry away from his work area. Apparently, the Administrative Law Judge credited both versions. 6. Maxwell discharged McMurry without com- pleting the customary personnel change authoriza- tion form explaining the discharge and refused to give McMurry a reason for his termination. Al- though Maxwell testified that he refused to give McMurry a reason in order to teach him a lesson for failing to inform Respondent when he would be absent, it is apparent that the incident immediately leading to McMurry's discharge was his talking to employees away from his work area, not his unauthorized unexpected absences. Moreover, we find it especially curious that Maxwell did not advise McMurry of the reason for his discharge since McMurry had never been warned about leaving his post. It is our longstanding policy to attach great weight to the credibility findings of an Administrative Law Judge, insofar as they are based on demeanor. 4 However, where a clear preponderance of all the relevant evidence convinces us that such a resolution is incorrect, we are impelled to substitute our own credibility findings for those of the Administrative 2 In his Decision, the Administrative Law Judge specifically found admissible Respondent's letter which was introduced at the hearing by the General Counsel as Respondent's statement of position. I The date is significant because the last repnmand Puleo admittedly gave McM urry was about August 25 when he told him if he were going to be absent to "at least call us." Standard Dri Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). ; W T Grunt Companr, 214 NLRB 698 (1974): Standard Dry Wall Products. TItpra U14 T Grant Compani. supra. 7223 NLRB 230(1976). ' As the court said in Shattuck Denn Minning Corporation (Iron King Branchi) s . .RB. 362 F.2d 466. 470 (C.A. 9. 1966): Law Judge.5 In such circumstances, the factor of the demeanor is significantly diminished. 6 Here, the Administrative Law Judge specifically stated that he arrived at his credibility resolutions not only by observing the demeanor of the witnesses at the hearing, but also by applying the criteria enumerated in Northridge Knitting Mills, Inc.7 There, we stated that the ultimate choice between conflicting testimo- ny rests not only on the demeanor of the witnesses, but also on the weight of the evidence, established or admitted facts, inherent probabilities, reasonable inferences drawn from the record, and, in sum, all of the other variant factors which the trier of fact must consider in resolving credibility. Applying those criteria to the facts here, we are of the opinion, contrary to the Administrative Law Judge, that Puleo and Maxwell were aware of McMurry's protected activities on the day they discharged him. In so finding, we rely not only on the discrepancies in the testimony of Puleo and Maxwell, but also particularly on the uncontradicted testimony that McMurry distributed cards the day of his discharge, Danny passed by him during a conversa- tion about the Union, and Puleo admitted that Danny pointed to McMurry while telling Puleo that McMurry was "bothering" employees. On these facts, the inference that Respondent knew of McMurry's union activity is clearly warranted, particularly in view of the unusual nature of the discharge. s Thus, the timing and circumstances of the dis- charge, Maxwell's refusal to supply McMurry with a reason for the termination or give him a termination slip as was customary under Respondent's policy, Respondent's failure ever to warn McMurry about talking to employees away from his work area, the condonation of McMurry's earlier absences (his only reprimand was in August), and the inconsistent and contradictory statements of Respondent's witnesses convince us the discharge was pretextual. According- ly, we find that McMurry was discriminatorily discharged because of his union activities in violation of Section 8(aX3) of the Act.9 Actual motive, a state of mind, being the question. it is seldom that direct evidence will be available that is not also self-serving In such cases, the self-serving declaration is not conclusive: the trier of fact ma\ infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact here the trial examiner-required to be anymore naif than is a judge. If he finds that the stated motive for a discharge is false. he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive--at least where, as in this case. the surrounding facts tend to reinforce that inference. 9 Warren Chateau Hall, Inc. 214 NLRB 351 (1974). 913 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent discriminated against Michael J. McMurry by discharging him because of his union activities, we shall order that Respondent cease and desist therefrom and take certain actions intended to effectuate the policies of the Act. Accordingly, Respondent is ordered to offer Michael J. McMurry immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings and other benefits suffered because of Respondent's discrimination against him. His loss of earnings shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing & Healing Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977).'0 CONCLUSIONS OF LAW 1. Respondent Warren L. Rose Castings, Inc. d/b/a V & W Castings, at all times material has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters Automotive Workers Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Michael J. McMurry because of his union activities, Respondent has discriminated and is discriminating against him in regard to hire and tenure of employment, thereby discouraging membership in a labor organization, within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of rights guaranteed them in Section 7 of the Act in violation of Section 8(a)(l) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, we issue the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Warren L. Rose Castings, Inc. d/b/a V & W "' In accordance with our decision in Florida Steel Corporation, we shall apply the current 7-percent rate for periods prior to August 25, 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. " In the event that this Order is enforced by a Judgment of a United Castings, Bell Gardens, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in a labor organiza- tion by discharging or otherwise discriminating in regard to the hire and tenure of employment of any employee or applicant for employment. (b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist Teamsters Automotive Work- ers Local 495, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively with representatives of their own choos- ing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act: (a) Offer to Michael J. McMurry immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings and other benefits suffered by him because of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Bell Gardens, California, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 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." 914 V & W CASTINGS (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a represent- ative that they choose To refrain from any and all such activi- ties. WE WILL NOT discharge, or otherwise discrimi- nate against, our employees because of their activities on behalf of Teamsters Automotive Workers Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them in Section 7 of the Act. WE WILL offer to Michael J. McMurry immedi- ate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without preju- dice to his seniority and other rights and privileges, and WE WILL make him whole for any loss of earnings and other benefits suffered because of the discrimination against him, with interest. WARREN L. ROSE CASTINGS, INC. D/B/A V & W CASTINGS DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge: The charge in this case was filed on November 3, 1976, by Michael J. McMurry. The complaint was issued on December 28, 1976, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Acting Regional Director for Region 21. The General Counsel's complaint alleges that Warren L. Rose Castings, Inc., d/b/a V & W Castings, herein called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(aX I) and (3) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer to the complaint and denied the commission of the alleged unfair labor practices. The hearing was held before me on February 7, 1977, at Los Angeles, California. Counsel for the General Counsel made an oral argument on the record at the conclusion of the taking of evidence at the hearing. Subsequently, she filed a motion to correct transcript which pertains solely to several proposed corrections in the transcription of her closing argument. In the absence of any opposition, her motion to correct the transcript is hereby granted. There are numerous other errors in the transcript, but they can be recognized as inconsequential errors which do not require a detailed correction of the record. The time for filing briefs was extended to March 29, 1977. Both counsel for the General Counsel and the attorney for the Respondent submitted briefs which have been read and duly considered. Upon the entire record in this proceeding and based upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent is a California corporation engaged in the business of aluminum casting with its principal place of business located at 6032 Shull Avenue in Bell Gardens, California. In the course and conduct of its business operations, the Respondent has annually sold goods valued in excess of $50,000 directly to customers located outside the State of California. Upon the foregoing facts, I find that the Respondent has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It was admitted in the pleadings that Teamsters Automo- tive Workers Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Accordingly, I find that fact to be so. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issue raised by the pleadings in this case concerns the motivation of the Respondent in discharging Michael J. McMurry on Friday, October 29, 1976. The General Counsel contends that the Respondent terminated McMurry because McMurry had engaged in union activity on that date by distributing union authoriza- tion cards to certain employees at the plant. Thus, the 915 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel argues that the Respondent thereby violated Section 8(a)(1) and (3) of the Act. The Respondent contends that McMurry was fired because of excessive absences, excessive lateness, and for being away from his work station during working hours. A second issue involves the General Counsel's allegation that the Respondent independently violated Section 8(aX)(1) of the Act by forcibly attempting to obtain union authorization cards from McMurry on October 29, 1976, immediately after his termination. The Respondent denies that the incident took place as described by McMurry but, in any event, argues that there was no violation of the Act. A third issue pertains to the admissibility of a letter from the Respondent's attorney who set forth the employer's statement of position to Region 21 of the Board during the investigation of the unfair labor practice charge. B. Foreman Puleo Phillip Puleo had been employed by the Respondent for about 14 years at the time of the hearing. Since May 1976, Puleo had been the sand foundry foreman and also the foreman of the core room and shell room department. Puleo said that new management had taken over about I- 1/2 or 2 years ago, and he estimated that the number of production employees had risen from a low of approxi- mately 60 employees at that point in time to about 130 production employees. There were about 25 employees in the core room during the time that McMurry worked there. About five or six of those employees worked in the core area where McMurry was a core machine operator. McMurry's machine was located approximately 20 or 25 feet from Puleo's office. However, Puleo pointed out that there was no window in his office, so he could not see McMurry from inside his office. Nevertheless, Puleo estimated that he spent only 2 or 3 hours a day in his office. He explained that the area where employees worked under his supervision covered from 15,000 to 16,000 square feet. The foregoing findings of fact are based upon the testimony of Puleo whose testimony has been credited throughout this proceeding. In many instances, the recol- lections of the four witnesses who testified were not in substantial conflict, and in some instances the testimony was not contradicted. However, where there are conflicts among the witnesses, I found the testimony given by Puleo and Vice President Melvin F. Maxwell to be the more reliable testimony and I have, therefore, credited their versions. See Northridge Knitting Mills, Inc., 223 NLRB 230 (1976), for the criteria utilized in addition to observing the demeanor of the witnesses at the hearing. Nevertheless, as pointed out, some of the testimony was not contradicted, and I have also made findings of fact based upon the testimony given by McMurry and by an employee on disability leave at the time of the hearing, John L. Smith. The source for the findings of fact in each section will be specified. C. McMurry's Attempts To Obtain a Raise McMurry began working for the Respondent on Thurs- day, May 13, 1976. About the middle of June 1976, McMurry approached Puleo and began the conversation by telling Puleo that another employee, John Smith, was earning 25 cents an hour more than McMurry. McMurry said that Smith had received a 25-cent-an-hour raise, ana McMdirry stated that he wanted a raise. Puleo testified: "I told him that I would have to check his records because I didn't hire him and didn't keep track." McMurry asserted that Melvin F. Maxwell, vice president of the Respondent, had promised him a raise after 30 days. Puleo testified: "At that time he was having a lot of time off, and I told him before I looked into a raise, he would have to show improvement in his attendance." Puleo stated that leadman Hallett was present during the conversation. Within the hour, Puleo had checked the Company's records and had found that it was not true that Smith had received a 25-cent-an-hour raise, and Puleo so informed McMurry. Puleo said that he thought that Smith was standing next to the table where Puleo and McMurry were talking. Puleo told McMurry that he was trying to get a raise "for all of you," but that he had to talk with Maxwell regarding it. At the hearing, Puleo explained that his use of the phrase "all of you" had reference to a raise for the whole core room. Puleo said that about 15 days afterwards the approximately 25 employees in the core room did, in fact, receive a raise. It was acknowledged by Puleo that McMurry was not the only one whose attendance was of concern to him at that time. He said that there were three employees who were also taking time off from work about the same time. He discussed McMurry's situation with the leadman about 3 days before the end of McMurry's initial 30-day period. Puleo explained at the hearing: "Well, we had a lot of work coming in, and we just needed a man. I was just hoping he would straighten up." The findings of fact in this section are based on Puleo's testimony. Maxwell confirmed that Puleo asked him for a raise for the approximately 25 employees in his shop. He said that a general raise was given of 15 to 20 cents for each person. Maxwell said that McMurry received his raise at that time. He said that Puleo told him that McMurry "had been off quite a number of times." Maxwell examined McMurry's record and formed the opinion that it was an inconsistent record of absences. Vice President Maxwell stated that he and Puleo discussed McMurry on at least three occasions. The first time was after McMurry had been employed for 30 days. With regard to McMurry, Puleo gave the following report to Maxwell: "He said he was absent and had some time off and was late a couple of times, but there was nothing at that particular time we could do because we needed the body. We needed the man." Maxwell explained at the hearing that absences had been tolerated to some extent from May through September 1976 due to the large turnover among the employees; the need to find skilled workers and the need to train employees. While the record shows that the total number of employees increased very little during that particular 5-month period, the turnover among employees would explain the number of new hires to which Puleo testified in his department. 916 V & W CASTINGS The findings of fact in the preceding paragraphs are based on Maxwell's testimony. McMurry gave a different version of his attempt to obtain a wage increase. McMurry said that he spoke with Maxwell regarding a raise about 6 weeks after he had been hired. At first, he testified that he spoke to Maxwell because he had heard from employee John Smith that Smith had received a 25-cent-an-hour increase. McMurry explained that he had known Smith before McMurry began working for the Company, and at the time of his employment he was hired by Maxwell at the same rate of pay that Smith was receiving at the time. That rate was $3.75 an hour. McMurry said that Maxwell promised him a 25-cent raise in 30 days. Later in this testimony, McMurry stated that he spoke with Maxwell before, rather than after, Smith told him about Smith's receiving a 25-cent-an-hour raise. McMurry testified with regard to his first conversation with Maxwell regarding a raise: I told him it was time for my raise. I said I wanted to let him know early because of all the trouble John Smith had been having and my raise was already a couple of weeks overdue. And John was still waiting for his raise, which was - he should have got about the time I started. He said he would get back to me. A couple of days later, according to McMurry, he spoke once again to Maxwell regarding a raise. McMurry testified that he asked, "What about my raise?" to which Maxwell replied, "Nothing." McMurry said that he also spoke several times with Puleo and leadman Shorty Hallett regarding a raise. However, he said that he did not receive a raise until September 1976 when he got 15 cents an hour increase. That resulted from all five employees in the core depart- ment asking Puleo for a raise and Puleo saying that he would put their names on a list of people whom he would recommend to Maxwell for a raise. Three or four days later, McMurry said that he received a raise and was told by Puleo that all had gotten a raise in pay. For the reasons stated earlier, I have credited the versions given by Puleo and Maxwell and, therefore, based the findings on their versions. D. McMurry's Tardiness and Absences For a 6-week period of time between Monday, July 19, 1976, through Monday, August 16, 1976, McMurry was away from work due to an injury covered by workmen's compensation. After McMurry's return to work in August, Puleo observed McMurry coming back to work from lunch 10 to 15 minutes late while everybody else was working. Puleo stated: "I told him it would have to stop. He said, well, I got things to do - he gave me no excuse whatsoever." McMurry was also absent from work for 3 consecutive days. Those were Monday, August 23, Tuesday, August 24, and Wednesday, August 25, 1976. According to Puleo, McMurry did not call in so, upon McMurry's return, Puleo told McMurry to "at least call us." McMurry told Puleo that he had gone up north for a bike. The findings of fact set forth above in this section are based on the testimony of Puleo. Maxwell recalled that about 2 weeks prior to McMurry's termination Puleo informed him that Puleo had reprimand- ed McMurry for being late in order to try to get McMurry to work more frequently and to stop the discussions around the shop. Maxwell said that Puleo told him that McMurry was either off of the job or off of his machine, and that Puleo could not continue to get production if a man was not coming to work. Maxwell said he agreed. The preceding findings are based on Maxwell's testimo- ny. John L. Smith began working for the Respondent in April 1976 as a shell core machine operator. He has been on disability status since October 18, 1976. Smith recalled overhearing leadman Hallett state that McMurry was doing good work. Smith said that he did not hear leadman Hallett or Foreman Puleo reprimand McMurry because of his absences or lateness. Smith estimated that the size of the department was about 40 by 50 feet and that sometimes he operated a machine at the other end of the department from where McMurry worked. When Smith was going to be absent from work, either he or his wife called into the company office and reported that fact. During the period of time about a month prior to McMurry's injury at work and about a month after McMurry returned to work, Smith gave McMurry a ride to and from the plant. On several occasions when Smith went to McMurry's residence in the morning, McMurry in- formed Smith that he was sick. He said that McMurry asked him to inform leadman Hallett of that fact. Smith said that he did so. During his direct examination, Smith said that this occurred about six, seven, or eight times. On cross-examination, he was less certain, but gave seven or eight times as his best recollection. Then he was confronted during cross-examination with his pretrial affidavit in which he had given the number as two occasions. That affidavit had been given by Smith on January 17, 1977. He then testified that it had occurred several times, or two or three times, but he stated that he could not remember how many times for certain. In light of the foregoing, I conclude that his pretrial affidavit contained the more accurate number of times. Smith did recall one occasion when McMurry told him the evening before that he would be away from work for a couple of days in order to pick up his motorcycle. Smith said that he had left his working area to speak to other employees in the core department. He said that this lasted for however long it was necessary to take care of the business he was discussing. However, he said that he had sometimes spoken to other employees during working time concerning other than business matters. Smith testified that he had not been warned concerning that. However, he did not testify whether any supervisors were present or had knowledge of his doing so. McMurry denied that anyone at the Company had ever talked with him regarding his unexcused absences or his 917 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tardiness. He did not remember anything being said concerning his absences on August 23, 24, and 25, 1976. He attributed his absences on Thursday, October 7, Friday, October 8, and Monday, October 11, 1976, to his picking up an engine for his motorcycle in San Luis Obispo, California. He said that he had no telephone at that time, but that he told employee Smith about being absent. As previously set forth, I have credited the testimony of Puleo and Maxwell and based the findings of fact in this section on their versions and, to the extent not in conflict, also on the testimony of Smith. E. The Events on Friday, October 22, 1976 On Friday, October 22, 1976, Puleo observed McMurry on two occasions away from his machine and talking to another employee. On both of those occasions, Puleo checked with leadman Hallett who told him that McMurry had a core in his machine and had walked away. Puleo said that other core machine operators had left their machines for 8 minutes, "but that's when there is no core in it." Puleo also said that other employees can talk to the person next to him, "but when you have a core machine, you don't leave it and walk away." Puleo did not overhear the conversation, but he observed McMurry on one of those occasions standing about 6 or 7 feet from Puleo's office and talking to another employee from 4 to 7 minutes. On the second occasion that day, Puleo observed McMurry talking to still another employee for 2 to 3 minutes about 100 feet away from McMurry's machine in the core room. The findings of fact in this section are based on Puleo's testimony. F. The Union Activities of McMurry The union activities of McMurry began on Thursday, October 28, 1976. After he left work at 2:30 p.m., McMurry went to Ozzie's Restaurant in Pico Rivera, California, where he met with a union organizer named Joe Hender- son. Henderson gave union literature and union authoriza- tion cards to McMurry and told him to get the cards signed and return them to Henderson. The next morning, Friday, October 29, 1976, McMurry brought the union literature and union authorization cards with him to the plant. His starting time was 7 a.m. He punched in at the timeclock and he passed out some of the cards. He had a break period which began at 8:55 a.m. and lasted 25 minutes. He passed out more cards during his breaktime. He received his weekly paycheck around II a.m. Then he had a lunch period from 12 noon to 12:30 p.m. during which he also distributed the cards. In addition, McMurry said that a couple of employees came to him at his work station during working hours that day and he talked with them. McMurry also described a brief conversation, which lasted I or 2 minutes at the most, after his lunch period. McMurry did not know the name of the employee with whom he spoke, but at the hearing he gave a brief physical description of the person. McMurry related the following account of his conversation with the employee: I went to the bathroom, went outside the bathroom to wash my hands and another employee came to wash his hands; asked me some questions about the Union, what would the union dues be. I told him that I didn't know exactly, but I figured the raise would more than cover them. He asked me some more questions about union benefits and he said he needed some more time to think about it. And I told him to tell your friends too. According to McMurry, the leadman in the finishing department, who was identified only by his first name as Danny, came out of the bathroom and walked over to where McMurry and the other person were talking. At first McMurry said that Danny was 2 feet from McMurry when he saw Danny. However, during cross-examination, McMurry was confronted with his pretrial affidavit which he had given on November 3, 1976. He acknowledged that he said in his affidavit that Danny passed about 5 feet away from him and the employee. During redirect examination, he changed his estimate to from 2 to 5 feet. About a half hour later, according to McMurry, he looked up from his work and saw Danny talking to Puleo. McMurry said that Danny was pointing in his direction at the time and that Puleo looked in McMurry's direction. About a minute or so later, McMurry said that Danny walked past the area where McMurry was working. The foregoing findings of fact are based on the testimony given by McMurry. G. The Events Preceding McMurry's Termination During the morning of Friday, October 29, 1976, about 10 or 11 o'clock, Puleo and the leadman named Danny had a conversation in Puleo's office. Puleo testified that Danny pointed to McMurry and, "He told me he was bothering people in the alley and bothering some guys in the core department, talking to some of them." Puleo stated that Danny did not tell him what McMurry was speaking about. That same day, around 2:20 p.m., Puleo and Maxwell had just come from the foundry and were walking in the main aisle when Puleo observed McMurry standing outside Puleo's office and talking to another employee. Puleo testified: "He was just standing there talking. I just told Maxwell that is it, I have had it." Puleo said that McMurry was doing the same thing that he had been doing right along and that he suggested to Maxwell that they get rid of him. Puleo testified that Maxwell told him, "If you don't want to do it, I will do it." Puleo denied that he ever saw McMurry passing out union cards. He further denied knowing anything about McMurry's union activities or hearing rumors regarding them. The foregoing findings of fact are based on the testimony of Puleo. Maxwell recalled that it was about 2 p.m. on October 29, 1976, when Puleo told him that McMurry was away from his machine, not producing cores, and talking to other people in the shop. Maxwell testified: "He told me he just couldn't put up with it; he couldn't get production if this 918 V & W CASTINGS continued; he had had enough." Maxweli's version is that he told Puleo that Puleo was busy with his production schedules, so Maxwell said that he would fire McMurry. Maxwell had the bookkeeper prepare checks in the full amount for McMurry, but. he did not have a termination slip made at that time. The foregoing is based on Maxwell's testimony. H. The Termination of McMurry Maxwell called Puleo that same afternoon and told him to send McMurry to his office. Maxwell testified with regard to his conversation with McMurry: "I told him he was through; I said you are terminated; here's your checks." Maxwell said that McMurry did not say anything at that time, and instead, he walked out towards the back of the shop. Maxwell asked McMurry where he was going. McMurry responded that he was going back to the bench to get his clothes. Maxwell told him that he would follow him out. Maxwell said: "He walked out to the bench, got his coat, got a paper bag and went to the front of the building." Maxwell denied that he touched either McMurry or the paper bag. He also denied that he tried to reach for the paper bag. Maxwell testified: "I don't know what he had in the paper bag and I could care less." When McMurry and Maxwell walked from McMurry's station to the front of the building, McMurry asked why he was being fired. Maxwell said: "I don't have to have a reason to fire you." His explanation at the hearing for not giving any reason for the termination to McMurry was: Sometimes you have to teach people lessons and I thought maybe it would sink in. This man never called in ever to tell us he was going to be late or not be there. Why should I - I am giving him the same treatment he gives me. He never told me when he was not going to be there so I said I don't have to give you a reason. Maxwell denied any awareness of any union activities in the shop and asserted that the reasons for McMurry's termination were his absenteeism and his being away from his machine instead of being at his machine and producing cores. The findings of fact in this section are based upon the testimony given by Maxwell. McMurry gave the following account of his conversation with Maxwell in Maxwell's office that afternoon: He said, "This is your final check." I said, "Why?" He said, "You are being laid off." I said, I asked why and he said, "You are just laid off. I don't have to give you any damned reason at all." McMurry said that he told Maxwell that he had to go back and pick up his things in the working area, and that Maxwell said that he would go with him. McMurry described the incident as follows: I went back, picked up my jacket with one hand and a brown bag with the union literature with the other and felt a pull of the bag. I jerked the bag away and he told me to get off the premises. McMurry described the bag as "It was a regular lunch sack, a small brown paper bag." He acknowledged that the contents of the bag were not visible. McMurry did work with tools at the plant, but he said that the tools are usually put away when the employees start to clean up before leaving work. For the reasons given previously, I have credited Maxwell's version and based the findings of fact on his version. I. Opinions of McMurry's Performance In Puleo's opinion, McMurry was a good worker when he was on the job. In his view, McMurry's production was "very good" when he was operating his machine. Although McMurry had 13 absences from work during the time of his employment by the Respondent, Puleo acknowledged that he had never given a written warning to McMurry. He said that he had given some verbal warnings and some written warnings to employees regarding their absenteeism. He explained that in the period after McMurry's termination, around December 1976, the Company had a new set of rules and commenced enforcement. Puleo also offered the explanation that. during the period of McMurry's employment at the Company, he had difficulty finding experienced personnel. He estimated that there were 20 or 22 persons hired in his department between the dates of McMurry's hire and his termination. The foregoing is based on Puleo's testimony. Maxwell was also of the opinion that McMurry was a good worker when McMurry was operating his machine. Maxwell gave the following description of the coremaker's job which McMurry performed: . . . his job in the foundry was to make the inside part of a casting, like the inside of an engine. That is all core work. Those have to be made in order to make the casting. Then the production people have to take those cores to make the casting. Now the core maker does the inside core work like the passage way in the head or block, and the molder makes the shape and pours the metal into it. So that was their function to make enough cores to keep 120 people working, and a core maker has to stay on his station. The foregoing is based on Maxwell's testimony. J. The Records of Other Employees Four employees, other than McMurry, were terminated by Puleo because of their absenteeism. No contention was made by counsel for the General Counsel that the other four employees were terminated for discriminatory rea- sons. 919 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Adalph Espinoza, Jr., was terminated by Puleo on August 27, 1976, because he was absent 17 times from work, including the date of his termination. Espinoza signed the Company's "Personnel Change Authorization" form when he came in to pick up his paycheck on the Monday following his termination. The form has spaces for the employee's signature as well as the supervisor's signature after the sentence: "I have reported all industrial injuries to the Company and am not now disabled or in need of treatment because of a job-connected accident." Macedonio Benavides was terminated by Puleo on September 6, 1976, for his absenteeism. His "Personnel Change Authorization" form recites 12 absences from work by Benavides, including the day of his termination. He also signed the form when Benavides came in later to get his paycheck. Manuel Espinoza was terminated by Puleo on September 22, 1976, because of his absenteeism. His "Personnel Change Authorization" form reveals eight absences by Espinoza during his employment, including being absent on the date of his termination. Puleo said that Espinoza called in on that last day, but he gave no reason for being absent. Espinoza also signed the form when he came in the following Monday to receive his check. All of the three employees referred to above were fired by Puleo for absenteeism prior to the time that McMurry was discharged. Another employee, Thomas Stenner, was terminated by Puleo for absenteeism after McMurry's discharge. Puleo fired Stenner on November 12, 1976. Stenner's "Personnel Change Authorization" form lists absences on four consecutive days, November 9 through 12, without calling his supervisor concerning the absences. Stenner also signed the form when he came to the plant after his termination. Two other employees who have had numerous absences from work at the Company had not been fired by Puleo at the time of the hearing in this proceeding. One of the employees was Mike Torres who had 17 absences of which only 3 or 4 absences had been excused. Puleo explained that Torres had alcohol problems as well as ulcers. Torres had been given three written warnings including his final warning the week before the hearing. The other employee was Alfredo Hernandez who had 29 absences from work. Puleo explained that Hernandez had been on sick leave or a leave of absence, but that since his return had not taken off. The records concerning Hernan- dez confirmed that after a series of days marked "ill" ending on July 31, 1976, only one absence from work was shown for September 20, 1976. In preparing a compilation of absences from the employees' timecards for introduction at the hearing, the marking on the timecard "ill" was shown on the compilation and tallied as an absence by counsel for General Counsel. Puleo stated that it was customary to prepare a "Personnel Change Authorization" form when an employ- ee is to be discharged. In the cases of the four employees fired by Puleo for absenteeism referred to above, each employee was absent from work on the date of his termination. Therefore, the employee signed the form subsequently when he came to the plant to receive his paycheck. However, employee Benjamin Velarde was terminated by Puleo on September 17, 1976, because of that employee's inability to follow the instructions of his supervisor. A form was prepared for Velarde's termination, but Velarde refused to sign the form. Puleo was unable to specify why a "Personal Change Authorzation" form had not been prepared for McMurry. The foregoing findings of fact are based upon the testimony given by Puleo and on documentary evidence. K. The Statement of Position As noted earlier, the unfair labor practice charge was filed on November 3, 1976, with Region 21 of the Board. On the same date, a form letter captioned "Notice of Filing of Charge" was sent by the Regional Director for Region 21 to the Respondent. That document was introduced with the formal papers as General Counsel's Exhibit I(b). Among other things, the Regional Director's letter requested that the Company submit promptly a complete written account of the facts and a statement of the Company's position with respect to the allegations set forth in the charge. Thereafter, the attorney for the Respondent submitted a letter dated December 14, 1976, to Region 21 which states in pertinent part: Following is the statement of position of the employer, V & W Castings, in the above-referenced matter. Michael McMurry, started working for V & W Castings on May 13, 1976, and was terminated October 29, 1976. The basic and sole reason for his termination was his extensive absenteeism and tardiness record during his five months of employment. He was absent from work for more than two weeks between July 19 and August 17 because of his claim that he injured his foot. In addition to this absence, McMurry was absent thirteen (13) other days without any justifiable reason having been given to the employer. As a matter of fact, with reference to those thirteen (13) absences for a full working day, in most of these situations McMurry did not call in on the day of the absence to indicate he would not show up. In addition to those unexcused absences and the extensive record of absenteeisms, he was tardy on a number of occasions. McMurry's starting rate was $3.75 per hour which was raised on September 13 to $3.90 per hour in accordance with pre-employment agreement that he would receive a nominal increase as soon as he obtained some experience. Also, McMurry did not appear to be interested in his work and spent consider- able time during working hours talking to other workers thus not performing his own functions but interfering with the work of other employees. The employer has no knowledge regarding the subject matters discussed by McMurry with other employees. The employer categorically denies that McMurry was terminated because of his activities on behalf of Teamsters Local #495. His discharge was related solely and exclusively to his absenteeism and tardiness record as well as his failure to apply himself to his job. 920 V & W CASTINGS Should you have any further questions regarding this matter, please contact me. Counsel for the General Counsel contends that the position taken by the Respondent in the foregoing letter is different from the Respondent's defense presented at the hearing. Therefore, the General Counsel argues, the Respondent has shifted its defenses with regard to the termination of McMurry and that change in defenses, along with the other evidence, should give rise to a finding that the Respondent's defense at the hearing was false and a pretext to cover up the Respondent's discriminatory motive. The attorney for the Respondent, on the other hand, argues that there is no inconsistency between the statement of position submitted to the Regional Director in connec- tion with the investigation of the unfair labor practice charge and the defense presented at the hearing. While the second paragraph of the letter speaks in terms of "the basic and sole reason for his termination" being McMurry's extensive absenteeism and tardiness record, the next to last paragraph of the letter reiterates McMurry's absenteeism, tardiness and failure to apply himself to his job. The attorney for the Respondent argues, therefore, that these factors set forth in the letter are consistent with the Respondent's defense. I find the Respondent's argument on this point to be persuasive. I find that there has not been a shift or change in the Respondent's defense to the 8(a)(3) allegation. Nevertheless, the Respondent also argues a more fundamental point, and that point is that such a statement of position, voluntarily given during an investigation, should not be admitted into evidence at a hearing. In his brief the attorney for the Respondent urges that the letter should be excluded. In summary, the grounds for exclusion rest upon: (I) what the Respondent feels are matters of public policy which would not be served, in the Respon- dent's view, if attorneys ceased giving such statements to Regional Offices to assist in the determination of whether an unfair labor practice complaint should be issued; (2) by restricting a Respondent's defense to the contents of such a letter, the Respondent would be denied the right to uncover and present evidence discovered at a later date; (3) the letters can be compared to offers of settlement since one purpose of the letters is to facilitate the reaching of settlements; (4) the letters are comments of the Respon- dent's attorney and cannot be used for impeachment of the Respondent's witness; and (5) in the Respondent's view the Board decisions which indicate that such statements of position were accepted into evidence do not specifically rule on the admissibility of such documents. I have considered the arguments made by the attorney for the Respondent and the arguments advanced by counsel for the General Counsel on the question of whether the document is properly admissible in evidence. I conclude that the Board has ruled on the matter in its decision in Steve Aloi Ford, Inc., 179 NLRB 229, fn. 2 (1969), which has been followed in subsequent cases. Accordingly, I find that the letter was properly admissi- , le in evidence, and I shall deny the Respondent's request that the letter be excluded. L. Conclusions In N.LR.B. v. Ace Comb Company and Ace Bowling Company, Division of Amerace Corporation, 342 F.2d 841, 847 (C.A. 8, 1965), the court held: It has long been established that for the purpose of determining whether or not a discharge is discriminato- ry in an action such as this, it is necessary that the true, underlying reason for the discharge be established. That is, the fact that a lawful cause for discharge is available is no defense where the employee is actually discharged because of his Union activities. A fortiori, if the discharge is actually motivated by a lawful reason, the fact that the employee is engaged in Union activities at the time will not tie the employer's hands and prevent him from the exercise of his business judgment to discharge an employee for cause. [Cita- tions omitted.] It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer's policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatsoever, or for no reason, so long as the motivation is not violative of the Act. [Citations omitted.] The timing of the Respondent's termination of McMurry on the same day that McMurry first distributed union authorization cards to certain employees at the plant is the strongest element in the General Counsel's case. Weighing against the inference which could be drawn from the timing of the termination are two significant factors: (I) the fact that the evidence does not establish that the Respondent had knowledge of McMurry's union activities prior to his termination, and (2) the fact that there is not any evidence whatsoever of union animus on the part of the Respondent, which might disclose a discriminatory motive if the Respondent did have knowledge of McMur- ry's union activities. As the Board pointed out in Siltec Corporation, 217 NLRB 282 (1975): Having alleged a violation of Section 8(a)(1) and (3) of the Act in the Respondent's discharge of Brawthen, the General Counsel had the burden of proving employer knowledge of the union activity and union animus as the motivation for the discharge. The General Counsel failed to meet this burden. Indeed, the Administrative Law Judge found, a finding which we adopt, that evidence of union animus on the part of the Respondent was "totally lacking." Since there was no evidence of actual company knowl- edge of McMurry's union activities on October 29, 1976, it was appropriate to examine the surrounding circumstances to ascertain whether there was a basis for inferring such knowledge. Kaye-Smith Enterprises, 211 NLRB 1034 (1974). In the instant case, there is no contention made that the leadman, Danny, was a supervisor within the meaning of the Act but, more importantly, the evidence does not establish that Danny overheard the subject matter of the conversation outside the bathroom between McMurry and 921 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unidentified employee. I found credible Puleo's testimony concerning his conversation with Danny regard- ing McMurry and the denials of Puleo and Maxwell that they had knowledge of McMurry's union activities. Thus, although McMurry distributed union authorization cards and union literature to certain employees on the premises on October 29, 1976, 1 conclude that the evidence is lacking to show that the Respondent knew of such activity. McMurry's involvement in union activity at the plant did not immunize him from being terminated for cause. Klate Holt Company, 161 NLRB 1606 (1966); Golden Nugget, Inc., 215 NLRB 50 (1974). His absences from work, his tardiness, and his being away from his work station were matters of concern to the Respondent and, in particular, to his supervisor, Puleo. These were matters which were mentioned to McMurry at various times, but on which action was not taken until October 29, 1976. In The Goodyear Tire & Rubber Company, 188 NLRB 563, 564 (1971), the Board observed: "A determination of discrimi- natory motivation must necessarily be based on an evaluation of all the circumstances surrounding the conduct alleged to be discriminatory. In this regard the record herein supports Respondent's contention that during Hawkins' entire tenure as service area manager, his performance left much to be desired." In the instant case, the evidence shows that McMurry's attendance at work also left much to be desired, in the Respondent's view, during his brief tenure of employment at the Company. The explanations offered by Puleo and Maxwell for not taking action earlier are persuasive. In their view, McMur- ry was a good worker when he was at work at his machine and his production was very good. During the period in question, they needed experienced personnel due to the turnover among their employees. As set forth earlier, the evidence shows that Puleo discharged four other employees because of their absentee- ism. Thus, his recommendation to discharge McMurry for that reason and other reasons is consistent with the actions which Puleo took with regard to the other employees. Furthermore, Puleo convincingly explained why two other employees with numerous absences had been retained. In Henry Marx and Saul Greenburg, d/b/a Ray's Liquor Store, 227 NLRB 1800, 1801 (1977), the Board stated: In sum, a finding of illegal motivation in these discharges requires an affirmative conclusion that one of the reasons for the discharges was the employees' union activity, or in Gorney's case his testimony under the Act. That conclusion cannot be reached here as the evidence falls far short of establishing a union-related or statutory-related reason for the discharges. The Board also noted in footnote 3 [at 1801] in that case that "mere timing and the severity of the disciplinary action do not necessarily lead to the conclusion that his discharge was discriminatory." In the instant case, while the timing is the strongest factor in the General Counsel's case, I find that factor to be outweighed: (1) by the fact that the evidence shows that the Respondent did not have knowledge of McMurry's union activities prior to his termination on October 29, 1976, and (2) the fact that there is no evidence of any union animus on the part of the Respondent. With regard to the General Counsel's allegation that the Respondent independently violated Section 8(a)(1) of the Act by forcibly attempting to obtain union authorization cards from McMurry, I conclude that the credited evidence does not support that allegation. As noted above, I have credited Maxwell's testimony that he did not attempt to touch McMurry or the brown paper bag at his work station following McMurry's termination. It is undisputed that the contents of the bag were not visible, and Maxwell denied having any knowledge of the contents. In these circumstances, I find the case relied upon by counsel for the General Counsel, Capitol Cement Division of Capitol Aggregates, Inc., 191 NLRB 419 (1971), to be distinguishable. After considering all of the foregoing, I conclude that a preponderance of the evidence does not establish that the Respondent has engaged in the unfair labor practices alleged in the complaint. Upon the basis of the findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Warren L. Rose Castings, Inc., d/b/a V & W Castings, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Automotive Workers Local 495, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint in this proceeding. [Recommended Order for dismissal omitted from publi- cation.] 922