American Thread Co.

AMERICAN THREAD COMPANY. SEVIER PLANT American Thread Company, Sevier Plant and Mike Lee Sparks. Case 11-CA-7348 May 7, 1979 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On September 21, 1978, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in support of the Administra- tive 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 only to the extent consistent herewith. The Administrative Law Judge concluded that Mike Lee Sparks was lawfully discharged for cause, and therefore recommended that the complaint be dismissed. Because we conclude that Respondent was, in fact, motivated by unlawful reasons rather than the reasons which it asserts for Sparks' dis- charge, we reverse the Administrative Law Judge and find that Sparks was discharged in violation of Sec- tion 8(a)(3) of the Act. At the time of his discharge, Sparks had been em- ployed by Respondent for 11 years and was consid- ered to be a good worker. He had been active in a union campaign in 1972, at which time he was ques- tioned by two different company officials-both of whom remained in positions of authority with Re- spondent at the time of Sparks' discharge-concern- ing his union activities. Additionally, some 8 months before his discharge, Sparks received a written repri- mand, a copy of which was placed in his personnel file, for handing out a union card during working time in violation of Respondent's no-solicitation rule. The conduct which purportedly led to Sparks' dis- charge occurred on December 2, 1977. Sparks, with the knowledge of two male employees, Chesley Glenn and Norman Dale, concealed himself between parked vehicles behind Respondent's plant and urinated on the ground. While he was so engaged, Glenn and Dale called Tammy Carpenter, a female employee of another employer, to a spot where Sparks could be observed and brought Sparks' activities to her atten- tion. She responded with an expletive and walked away. Amused at her reaction, Glenn went into the plant and told several others, including his supervisor, what he and Dale had done. The incident was re- ported to higher management, which determined to suspend Sparks, and Sparks was informed of the ac- cusations against him. At that time Sparks defended his actions on the ground that his back was turned to Carpenter. Sparks was suspended for 3 days. During Sparks' suspension Glenn and Dale were interviewed, but Carpenter and Sparks were not ques- tioned. A decision was then made to discharge Sparks. When Sparks returned to work on December 7 he was informed of his discharge. Upon his request to speak to his accusers, Respondent sent a supervisor to obtain a signed statement from Glenn and Dale but did not call either into the meeting with Sparks. Sparks was then discharged, purportedly for "obscene conduct." No disciplinary action of any kind was taken against either Glenn or Dale. In considering the facts of this case, we are mindful that it is not the Board's function to second-guess an employer when discipline is imposed-whether it is in response to a breach of implicit plant rules, a devi- ation from norms of behavior acceptable in the com- munity, or some other alleged deficiency-as long as it is not imposed for a reason proscribed by the Act. Thus, we are not necessarily concerned when a par- ticular disciplinary action seems to us to be excessive, unfair, or unwise. However, when it is alleged that the reason assigned for the discipline is pretextual, our attention must necessarily turn to the reaction of the employer, both in proportion to the behavior in- volved and in contrast with the employer's response to similar behavior when engaged in by employees who have not been involved in union activity. When the evidence convinces us that similar transgressions, when engaged in by other employees, would not have resulted in an equally severe response, it is necessary to inquire further into the employer's motives.' Such an inquiry is not for the purpose of substitut- ing our judgment for that of the employer. Rather, it acknowledges the necessary limitations on the ability of the litigation process to fully reflect industrial real- ity: I As the Fourth Circuit said in Neptune Water Meter Company, 551 F.2d 568, 570 (1977): The rule is that if the employee has behaved badly it won't help him to adhere to the Union, and his employer's anti-union animus is not of controlling importance. But if the employee is a good worker and his breach of the work rules trivial. the more rational explanation for dis- charge may be invidious motivation. Such motivation can be found from the absence of any good cause for discharge. This must be so unless we are willing to assume something we know to be false: that businessmen hire and fire without any reason at all. In the end after weighing all relevant factors including particularly the gravity of the offense. an unfair labor practice may be found only if there is a basis in the record for a finding that the employee would not have been discharged, though he may have been subjected to a milder form of punishment for the offense. except for the fact of his union actisity 242 NLRB No. 10 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Actual motive, a state of mind, being the ques- tion, it is seldom that direct evidence will be available that is not also self-serving.... If [the trier of fact) 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 .... 2 In the instant case, we are persuaded that it is neces- sary to consider Respondent's motivation more care- fully. We note initially that, in dealing with this incident, Respondent took barely minimal steps to obtain Sparks' version before deciding what discipline would be appropriate. Subsequently, although "indecent conduct" was not among the types of conduct listed in Respondent's employee handbook as calling for automatic discharge, Respondent summarily rejected any lesser punitive measures, despite Sparks' good work record and Respondent's stated policy that "dis- charge is the last resort." Respondent introduced evidence which was in- tended to show that it considered transgressions of this nature to be serious matters. However, the evi- dence submitted does not support the Administrative Law Judge's conclusion. In previous years Respon- dent allegedly objected to employees' misuse of the area behind its plant for these purposes, but took no steps to identify and punish previous transgressors. Nor was there evidence that employees were in- formed that such behavior might be cause for disci- pline or discharge. Thus, until a union activist en- gaged in this activity, it was evidently considered to be a minor matter by Respondent. Respondent asserts that the seriousness of Sparks' offense was aggravated by Carpenter's presence. While we agree that it was deplorable that a female employee was subjected to the treatment Carpenter received, we note that this occurred through no fault of Sparks, but was caused solely by the decision of Glenn and Dale to draw her attention to the incident for their own amusement. As noted earlier, Sparks took care to shield himself from view. Thus, to the extent that "obscene conduct" was involved here, it was not Sparks' conduct, but rather the conduct of Glenn and Dale in involving Carpenter and making fun of Sparks, that was obscene.3 2Shattuck Denn Mining Corporation (Iron King Branch) v. N.L. R.B., 362 F.2d 466, 470 (9th Cir. 1966). 3 Member Penello finds the conduct herein distinguishable from that in Mueller Brass Co., 220 NLRB 1127 (19751, in which he dissented from a majority finding that the employer in that case had unlawfully discharged an employee for indecent conduct. In that case, the employee in question had purposefully embarrassed female employees by displaying an indecent object in a lewd manner. Here, however, as noted above, Sparks took pains to shield himself from view, and there is no evidence of any attempt on his part to embarrass Carpenter. We are also unpersuaded by Respondent's asser- tion that it had a practice of discharging employees who engaged in "obscene conduct." Even assuming that Sparks' conduct can be deemed obscene-and we do not deem it to be such-the sole instance cited by Respondent in support of this contention involved the purposeful distribution of obscene material, and we have only Respondent's self-serving statement that the transgressor would have been discharged had he returned from the 3-day suspension imposed. A more accurate barometer of Respondent's policy is its utter disregard of the major role played by Glenn and Dale in this incident and its consequent failure to dis- cipline Glenn and Dale. This condonation of their "obscene conduct" indicates to us that Respondent had no set policy of disciplining employees who en- gaged in breaches of propriety-unless they were ac- tive in union activities. The absence of concurrent union organizational ac- tivity at the time of the discharge does not shield Re- spondent from any suspicion of antiunion motivation here. Respondent was aware of Sparks' union sympa- thies at the time of the last union campaign and, be- cause of the presence in Sparks' personnel file of a reprimand for soliciting on behalf of a union, Respon- dent was cognizant of both the danger of renewed union activity among its employees and Sparks' con- tinued willingness to engage in activities on behalf of a union. There is no question that Respondent op- posed unionization of its employees. Based on the dis- parate treatment of the participants in the events in question, the evident lack of concern evidenced by Respondent when similar use was made of the area behind its plant in the past, and the perfunctory at- tempts made to ascertain the identity of the real cul- prits in this incident, we conclude that Sparks' con- duct was a mere pretext seized on by Respondent to rid itself of a known union adherent.4 Moreover, even assuming, arguendo, that Respondent would have taken some disciplinary action toward any employee actually caught while engaged in similar activity-a finding which, we note, is not supported by the evi- dence in the record and indeed is contradicted by its failure to take any disciplinary action against Glenn and Dale, whose activities were the principal cause of any arguable "obscenity" here-Respondent has not established that it would have imposed the same dis- cipline in the absence of its hostility toward union organizational activities, and we therefore find that ' Civic Center Sports, Inc., 206 NLRB 428 (1973), cited by the Administra- tive Law Judge. is inapposite. There, the employee had exhibited poor work habits during his brief tenure with the employer and had previously been warned that continued problems with absenteeism and tardiness would re- sult in his discharge. His involvement in union activities could not shield him from discipline for work-related difficulties. This is a far cry from the instant case, where a concededly good worker was fired for what was at most a minor indiscretion. 28 AMERICAN THREAD COMPANY, SEVIER PLANT the severity of the discipline imposed here was exac- erbated by Sparks' union activity. In view of the foregoing, and upon the entire rec- ord in this case, we conclude that Respondent dis- charged Mike Lee Sparks in violation of Section 8(a)(3) and (1) of the Act, and that the aforesaid un- fair labor practice affects commerce within the mean- ing of Section 2(6) and (7) of the Act. The Remedy Having found that Respondent has violated the Act in certain respects, we shall order that it cease and desist therefrom and take certain affirmative ac- tion necessary to effectuate the policies of the Act. We shall order that it offer immediate and full rein- statement to Mike Lee Sparks, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of his unlawful dis- charge by Respondent. Backpay with interest thereon is to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977).5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, American Thread Company, Sevier plant, Marion, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees because of their interest in, or ac- tivity on behalf of, a labor organization. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Mike Lee Sparks immediate and full rein- statement of his former job or, if that job no longer exist, to a substantially equivalent position, without prejudice to his seniority or any other rights or privi- leges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of his unlawful discharge by Respondent in the man- ner set forth in the section herein entitled "The Rem- edy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 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 plant in Marion, North Carolina, copies of the attached noticed marked "Appendix."6 Copies of said notice, on forms provided by the Re- gional Director for Region I I, after being duly signed by Respondent's representative, 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. (d) Notify the Regional Director for Region II11, in writing, within 20 days of the date of this Order, what steps Respondent has taken to comply herewith. 6 In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL. NOT discharge or otherwise discrimi- nate against employees because of their interest in, or activity on behalf of, a labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act. WE NWILL offer Mike Lee Sparks immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and WE WILL make him whole for any loss of earnings he may have suffered by reason of our unlawful discharge of him, with interest. AMERICAN THREAD COMPANY, SEVIER PLANT DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge: This case was heard at Morganton, North Carolina, on June 26- 27, 1978. The charge was filed by Mike Lee Sparks on De- 29 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cember 13, 1977,' and the complaint was issued on Febru- ary 15, 1978. The sole issue presented is whether American Thread Company, Sevier Plant, herein called Respondent, discriminatorily discharged Mike Lee Sparks because of his activity on behalf of a union thereby violating Section 8(a)(3) and (I) of the National Labor Relations Act, herein called the Act. Upon the entire record,2 including my observation of the demeanor of the witnesses, and after due consideration of the General Counsel's oral argument at the hearing and of Respondent's oral argument and subsequently filed brief, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation, is engaged in the finishing of cotton threads with a place of business referred to as the Sevier Plant at Marion, North Carolina. During the past calendar year Respondent at its Sevier plant pur- chased and received goods and raw materials valued in ex- cess of $50,000 directly from points located outside the State of North Carolina, and during the same period of time manufactured, sold, and shipped goods valued in ex- cess of $50,000 directly to points located outside the State. Respondent admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Charging Party, Mike Lee Sparks, was employed by Respondent in its receiving department and worked as a truckloader for a period of about 11 years prior to his dis- charge on December 7. As far as the record shows he was a good employee, although from uncontradicted evidence submitted by Respondent Sparks he had been orally warned on two occasions in the year of his discharge for leaving his work area prior to the shift end buzzer' and on one occasion, April 8, for "giving out union cards" contrary to Respondent's "policy regarding solicitation."4 On the oc- casion of the latter warning Sparks denied that he had been giving out union cards. Nevertheless, Sparks testified that he had been involved in union activity at Respondent's plant on three different occasions, the first being, by his recollection, in 1973 and the last being in June 1977. The extent of such activity was soliciting about 15 or 20 employ- ees to sign union authorization cards and attending several union meetings. 'All dates are in 1977 unless otherwise stated. 2 The transcript is hereby corrected to reflect "Judge Brandon" wherever it presently reads "Judge Hutton." 3 March 24 and June 8. 4 Resp. Exh. 8. Respondent maintained a no-solicitation/no-distribution rule which appeared valid on its face and which was not attacked as unlaw- ful by the General Counsel herein. The name of the union on whose behalf Sparks was engaged is not re- flected in the record. Although the complaint alleges that Amalgamated Clothing and Textile Workers Union, AFL-CIO, is a labor organization, Respondent's answer stated that Respondent was without knowledge of the Sparks testified that the Union won an election at Re- spondent's plant in 1973 or 1974. Wade Bowman, Respon- dent's industrial relations manager for the Sevier plant, tes- tified that the election was in June 1972 and that it was set aside due to "irregularities" and a second election held in September 1972 was lost by the Union. There was no other union activity, according to Bowman, until April, but that union activity was not sustained, and as far as he knew, contrary to Sparks' testimony, there was no union activity at the plant in June. Bowman's recollection appeared to be more positive and accurate than Sparks' with respect to the timing of the election and union campaigns. Sparks' recol- lections were vague and uncertain and his testimony re- garding the last union campaign as being in June was con- tradicted by his prehearing statement which indicated that the last prior union activity had been 2 years prior to his discharge. Accordingly, I credit Bowman's testimony where it contradicts Sparks' with regard to the timing of the union elections and campaigns.6 Sparks testified that right after voting in the first election, and as he was returning to his job, he was asked by Bill McBee, plant manager, in the presence of employee Ches- ley Glenn, if Sparks had "voted right." Sparks replied that he had. After the election Sparks attended a union victory party about which he was subsequently quizzed by Charlie Duncan, consumer products supervisor for Respondent, and by Plant Manager McBee. Sparks credibly testified that Duncan told him he had heard that Sparks had gone to the union party and Sparks acknowledged that he had. Duncan then remarked that he had heard that Sparks got a "whole lot of beer up there at the party." Sparks replied affirma- tively and Duncan "just laughed." Within a few minutes thereafter, according to Sparks, Plant Manager McBee asked Sparks if he had gone to the union party. When Sparks replied that he had McBee stated "I heard that you carried off all the beer," and Sparks responded, "all I could get." Aside from the discussion Sparks had with his supervisor, Joe Biddix, inventory control supervisor, concerning, in Sparks words, "passing out union literature on company time,"' Sparks experienced only one other occasion when a supervisor discussed a union with him. That was about 3 weeks after the discussion with Biddix, and on that occa- sion, still according to the uncontradicted and credited tes- timony of Sparks, Sparks was stopped in the plant by McBee who asked Sparks if he was "for the Union." Sparks stated he was not and McBee replied, "Well, we don't need truth of the allegation, and the General Counsel submitted no evidence on the point. I find it unnecessary to make any specific findings on the allegation in view of my ultimate conclusions in this case and because Respondent concedes that it was aware that Sparks had been engaged in "union activity" as demonstrated by the warning given him for soliciting "union cards" in April. 6 As previously noted, the record of oral warning given Sparks for "giving out union cards" was dated April 8 thus corroborating Bowman's testimony regarding the existence of a union campaign at that point in time. ' Since Biddix talked to Sparks only one time about the Union or passing out union material, I conclude this is the same event recorded on Respon- dent's employee records for Sparks as the April 8 oral warning by Biddix, even though Sparks testified he was not "warned" and denied to Biddix that he had been passing out union cards on company time. 30 AMERICAN THREAD COMPANY, SEVIER PLANT the Union in here, we can't stop and talk like we are doing now if we get a union." Respondent admitted through the testimony of Wade Bowman that it was opposed to having a union represent its employees. This position is consistent with a statement in an "Employees' Guide" booklet generally distributed to its employees to the effect that Respondent had "every inten- tion of operating our plant in such a way as to make it unnecessary for you as an employee and a member of our team to have to rely upon anyone outside of our company or to deal through anyone but yourself directly with your supervisor and the company on any problem that may be of concern to you." Also in keeping with this position Max Poore, industrial relations director for Respondent's south- ern plants, made a speech to employees in which he dis- cussed the Union, and, according to Sparks, "told the bad parts" about the Union and stated that "unions cause trou- ble." Sparks' testimony as to the content of the speech was not contradicted by Respondent and is credited. However, while Sparks placed this speech in June or July, I credit Bowman's recollection that it was in April.8 B. The Discharge of Sparks The circumstances of Sparks' discharge are not in signif- icant dispute. The discharge grew out of an incident occur- ring on December 2. On that date around 8:30 a.m. Sparks was unloading trailers. Having finished unloading two trail- ers and during the switch over to a third trailer Sparks decided he would "go to the bathroom." Since the "bath- room" was over 150 yards away he went outside the rear of the plant where he encountered employees Chesley Glenn and Norman Dale who were sitting in a trash truck facing the rear wall of the plant building contemplating taking a break. Glenn asked Sparks for the time and Sparks gave it to him and added that he needed to "pee real bad." Glenn told him to "step back there" and "nobody can see you." Sparks proceeded to the rear of the trash truck and to the right rear of an adjacent station wagon belonging to Robert Ayers of Ayers Food Service which ran concessions in the plant. There Sparks proceeded to urinate on the ground. Dale suggested to Glenn that they play a joke on Sparks by calling a girl employee-attendant of Ayers Food Service over to their vehicle where Sparks could be observed. At that point the girl, Tammy Carpenter, was attending an Ayers Food Service truck which was parked on the other side and slightly to the rear of Ayers' station wagon. Glenn followed Dale's suggestion and called Carpenter over to their vehicle. Carpenter responded by coming over to a point between Ayer's station wagon and Glenn's vehicle where Glenn asked Carpenter "what is the matter with Sparks?" Carpenter, after noticing Sparks, looked at Glenn and stated "you damn shit ass" and turned and walked off. I The record shows that Respondent's counsel in asking Bowman about the "speech" referred to the speech being made by "Mr. Morgan." Similarly, Respondent's counsel in cros-examinating employee Chesley Glenn asked about a speech by "Mr. Max Morgan." I conclude that if the record itself is not in error the reference to "Max Morgan" rather than Max Poore was inadvertent and the witnesses understood the references to be to Max Poore's speech. No "Morgan" is identified in the record. Sparks who admittedly was urinating at the time, but with his back to Carpenter, "cut it off" when he heard her say something. Sparks then returned to work.9 Glenn, amused at the joke he had played on Sparks, went into the plant for his break and laughingly told other em- ployees of the incident. Glenn also told his supervisor, Wil- lard Hollifield, maintenance supervisor, who, according to Glenn, initially laughed but then his look turned "sour," and he walked off. Hollifield reported the matter to Joe Biddix who in turn reported the incident to Bill Henline, assistant plant man- ager, and a decision to suspend Sparks was made. Biddix then proceeded to talk to Sparks and advised him of what he had been accused of. Sparks, according to Biddix's testi- mony which is credited on the point, did not deny the inci- dent but only defended on the basis that his back was turned to "the lady" when urinating. Biddix thereupon sus- pended Sparks for 3 days. Because Sparks did not have a way home at that time of day Biddix drove Sparks home, a distance of 16 or 17 miles one way according to Sparks. Sparks credibly testified, without contradiction from Bid- dix, that during the drive to Sparks' home Biddix told him that he hated "this so bad he could cry if it would do any good," that Sparks was the "best operator in the mill" and that "if it just hadn't gotten into the hands of the wrong people, if they had come to him before it got to the wrong people, he thought that he could have got it stopped." During the suspension an investigation of the matter was conducted by Bowman who interviewed Glenn and Dale but not Sparks or Carpenter.'d As a result of his investiga- tion on December 2, Bowman testified that he concluded Sparks should be fired. Subsequently, according to Bow- man's credited testimony, after conferring with Max Poore, Bill Henline, and Joe Biddix a decision to fire Sparks was made. On December 7 after his 3-day suspension expired Sparks reported to work and was referred to Bowman's of- fice by Biddix. In Bowman's office Bowman announced the decision to terminate Sparks. Sparks testified he told Bow- man he would like "to hear them two boys that said they seen me." Bowman asked if he was denying it, and Sparks admitted he was not but that he did not believe anybody had actually seen him urinating. Bowman left the office "to get their [Glenn's and Dale's] word." Bowman did in fact reinterview Glenn and Dale, wrote out a brief statement" which the two signed, and returned to the office and com- pleted the discharge of Sparks. Sparks' release notice to Respondent's personnel department signed by Biddix and signed as approved by Bowman reflected that he was re- leased due to "Disorderly conduct." Under the remarks sec- ' The foregoing description is based upon a composite of the testimony of Glenn, Dale, and Sparks which was not in significant dispute, and which I credit with respect to the incident. Carpenter was not called to testify. 't Carpenter left work on December 2 before Bowman could talk to her and was subsequently away from work due to weather and unavailable for interview according to Bowman. She was interviewed by him after Sparks' discharge, however. B Resp. Exh. 4. 2 G.C. Exh. 3. 31 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion "Indecent conduct" was noted.'" His performance rat- ing was marked good and the remarks section thereunder contained the statement "No complaint against the way Mike did his job." C. Contentions of the Parties It is the General Counsel's contention that Sparks was discharged because he had engaged in union activity, and the urination incident was simply seized upon as a pretext in order to effectuate the discharge. In support of this con- tention the General Counsel argues that Respondent in its zealousness to effectuate Sparks' discharge ignored its own disciplinary procedures and its own policy that discharges were a last resort. Except for "serious offenses" disciplinary actions under Respondent's "Employees' Guide" were pro- gressive in nature providing for oral warning, written warn- ing, and layoff penalties. Further, indecent conduct was not listed in the employees' guide as an example of the kind of misconduct which would "leave the Company no choice but immediate discharge." The discharge of a good em- ployee with I years of service without following progres- sive discipline, according to the General Counsel, can only lead to a conclusion that the discharge was pretextual. In further support of his pretext theory the General Counsel notes Respondent's general opposition to unions, its admitted knowledge that Sparks had handed out union cards, and its disparate treatment of Sparks as shown by Respondent's failure to even reprimand Glenn or Dale for their participation in the urination incident and the at- tempted embarrassment of either Sparks or Carpenter. Other evidence discussed infra, that other employees uri- nated outside at the rear of the plant, and the absence of a general rule against urinating outside is also supportive of a pretext theory, according to the General Counsel. The Respondent's position predictably is that Sparks was discharged for cause, the basis of which he admits. Respon- dent argues that Sparks knew or should have known that his urination in an open area in the presence of other em- ployees constituted indecent conduct thus violating a rule he was admittedly aware of. Respondent through its wit- nesses Bowman and Biddix, the only participants in the decision to discharge Sparks who testified at the hearing, denied that union considerations were involved in Sparks' discharge. Rather, and in essence, Respondent contends it had a right to be concerned over the urination incident because of the number of women it employed in the area' 4 and its conclusion with respect to the seriousness of the offense and discipline to be imposed, notwithstanding Sparks' length of service and generally clean record, was an area of management prerogative not to be usurped by the Board. [ Respondent's posted plant rules, Resp. Exh. 6, provide in pertinent part: Any employee having been found to have violated any of the following will be subject to discipline or discharge depending upon the circum- stances in each situation. 4. Fighting, playing, gambling, indecent conduct or language while on duty or on Company property. I4 According to Bowman, 50 percent of the employees that work in the plant were women. D. Discussion and Conclusion What makes the legitimacy of the discharge of Sparks so highly suspicious is the minor nature of his offense when weighed in terms of the value of his services as a good employee for more than 11 years.'5 This is not to say that his indiscretion in urinating at the rear premises of the plant can be condoned. Discipline short of discharge would be unquestionably appropriate. Discharge, however, requires closer examination because the severance, beyond being re- sponsive to the offense, could serve a multiple purpose in- cluding the elimination of an individual whose known union advocacy in prior union campaigns called itself to management's attention. The weakness of the basis for discharge is also pointed up by evidence from General Counsel that urination outside the plant building but on plant premises was not an unusual event. Thus, Chesley Glenn testified that he had seen sev- eral employees urinate outside the plant and had even testi- fied that he himself had done so several times. While he was unable to specify any employees other than himself by name, he testified he had seen certain named "supervisors" urinate outside. However, with the exception of one occa- sion, such prior instances took place more than 6 or 7 years prior to Sparks' discharge. One alleged "supervisor," Lloyd Stevens, according to Glenn, had relieved himself outside between two box cars approximately 2 months after Sparks' discharge.' Employees Reid Queen, Jr., and Homer Gerald Butner called as witnesses by the General Counsel similarly testified that they had observed employees urinate outside the plant, with Butner also admitting that he himself had engaged in such conduct. Neither could establish supervi- sory knowledge of such conduct. Sparks' offense does not appear to be greater simply be- cause through no fault of his own a female was called into i' The minor nature of the offense was implicitly recognized by the deci- sions of the Employment Security Commission of North Carolina dated De- cember 29, January 18, and March 22, 1978, which found Sparks had not engaged in misconduct in connection with his work for which he could be disqualified from receiving unemployment compensation. G.C. Exh. 6(a)-(c). Respondent objected to the receipt of G.C. Exh. 6(a)-(c) on the basis of relevance and a North Carolina Statute (N. C. Gen. Stat., sec. 96 150)) in effect making "all reports" with respect to a claim for benefits absolutely privileged communications. While not binding on the Board, the decisions of State employment commissions have probative value. Duquesne Electric and Manufacturing Company, 212 NLRB 142 (1974); Aerovox Corporation, 104 NLRB 246 (1953). They are not controlling, however. Supreme Dying Finishing Corp. and Valley Maid Co., Inc., 147 NLRB 1094, 1095, fn. I (1964). Reports to commissions may not be considered where barred by statute. See, e.g., Carpenters Local Union # 224, United Brotherhood of Car- penters and Joiners of America, AFL-CIO (Peter Kiewit & Sons Co.l, 132 NLRB 295, 332-336 (1961). I do not deem the North Carolina Statute to apply to decisions of the Commission as opposed to "reports" to that body by a party. In any event, I have considered the Commission's decisions not as establishing the absence of "misconduct" on the part of Sparks but only as reflecting that a reasonable basis exists for a difference of opinion as to the degree of seriousness of the offense for which he was discharged. 16 While I found Glenn to be a generally credible witness even if not impartial because of his friendship with Sparks, he was not questioned about the exact titles or jobs of the "supervisors" he saw urinating. Stevens and the other "supervisors," Don Washburn, Dewitt Mace, and Bill Countess men- tioned by Glenn, were not named in the complaint as supervisors and their supervisory status was not litigated. I therefore do not regard the record as establishing their status as supervisors within the meaning of the Act and impute no knowledge to Respondent of their conduct pnor to Sparks' dis- charge. 32 AMERICAN THREAD COMPANY, SEVIER PLANT the picture. There is no evidence that he deliberately ex- posed himself to Carpenter or otherwise sought to embar- rass her. Moreover, one tends to have little concern for the modesty of the girl in view of her language and response to Glenn and Dale which no doubt contributed to the enjoy- ment of the "joke" they had played on Sparks. Respondent's failure to take any disciplinary action against Glenn and Dale for their participation in the inci- dent also, as the General Counsel contends, contributes to the "suspicion" that other motivations were involved in Re- spondent's discharge of Sparks. While Sparks by his con- duct "created" the setting for the incident, it was Glenn and Dale who magnified the incident by involving Carpenter. To this extent then, they were not just witnesses to the event but were participants. To excuse such complicity as a joke as Respondent did to explain the absence of disciplinary action against them smacks of disparate treatment sugges- tive of ulterior motivations in the discharge of Sparks. Nevertheless, and notwithstanding the foregoing, there is precious little in the way of evidence to establish more than a suspicion that the discharge was discriminatorily moti- vated. "[M]ere suspicion cannot substitute for proof of an unfair labor practice." Lasell Junior College, 230 NLRB 1076 (1977). See also Kings Terrace Nursing Home and Health Related Facilit'. 229 NILRB 1180 (1977); DSL M/lk., Inc., 202 NLRB 970 (1973). There are a number of factors which militate against a finding of a violation in Sparks' discharge. I am not persuaded by the General Counsel's evidence noted above that the use of the premises outside the plant as a restroom by male employees was such a wide- spread or extensive practice as to be the common occur- rence the General Counsel would have me believe. More- over, the evidence, in my view, fails to establish knowledge on the part of management of any particular employee's urination on the premises, aside from Sparks. On the con- trary, the evidence from Respondent's witnesses shows that when Respondent's supervisors suspected, on the basis of odor, that employees were urinating outside the plant they moved to stop it by advising employees not to do so. Thus. Wayne Buchanan, customer service manager, testified that in 1973 when he was general foreman of distribution and truckloading he detected an odor of urine in the dock area and gave instructions to his foreman to tell employees to quit using the back outside as a restroom. Similarly. Ralph Hollifield. terminal manager, testified that he noticed a urine odor in the dock area about 8 years ago and in- structed his employees that if they were the guilty' parties they were to stop it immediately. The testimony of Bu- chanan and Hlollifield was not rebutted and is credited. The reasonableness of such restriction cannot be gainsaid. Man- agement concern over the use of the outside premises as a restroom would thus provide a legitimate basis for disciplin- ary action. Given the reasonableness of the concern, union membership or support would not license an employee to urinate outside designated restroom areas anymore than it would license him to urinate on the factory floor. ' "' See The Hiart: Mountain Corporation. 228 NLtRB 492 (1977). where the Board found no violation of the Act in the discharge of a union adherenl on the emploser's belief thal the discharged emphloee had urinated on he flc- tory floor Furthermore, and in any event, there was more involved in the Sparks incident than the use of the outside as a rest- room. While Sparks may not have intended tfor his act to be observed, he put himself in a position where he ran the risk of observation and should have been aware of the potential consequences. Carpenter was in the area when he began his act and it matters little whether she observed Sparks be- cause of the inadequacy of his cover or because her atten- tion was called to him through Glenn. Viewed in this light. Sparks' indiscretion cannot realistically avoid the "indecent conduct" label imposed by Respondent. There is also some plausibility to Respondent's failure to take disciplinary action against Glenn and Dale. Neither was responsible for Sparks' conduct. They only capitalized on it for their own base amusement. In addition, Respon- dent did present evidence that its action in discharging Sparks was not completely without precedent. Thus, Re- spondent in April had suspended an employee for disor- derly conduct involving the creation and circulation of an obscene drawing. The employee, according to the testimony of Bowman, credited in this regard, escaped discharge only because he failed to return to work after a 3-day suspen- sion. There is little evidence in the General Counsel's case of Respondent's union animus to a degree sufficiently strong to impel Respondent to violate the law in order to prevent unionization. It is true that Respondent. as its employee booklet suggested and as Bowman testified, opposed union organization of its employees. It is further true that Poore in his speech to employees stated that Unions "cause trouble." Such a position and such expressions unaccompanied by threats, promises, or coercion would not support a finding of union animus warranting an inference of a willingness on the part of Respondent to resort to discriminatory dis- charges in iolation of Section 8(a)(3). See Monmouth Col- lege, 204 NLRB 554 11973). enfd sub non. H'einberg v. N.L.R.B., 491 F.2d 752 (3th ('ir. 1974). However. McBee's questioning of Sparks as to whether he was for the Union and his added comment that "we" can not stop and talk "if we get a union" does constitute conduct of a type which might be considered as iolative of the Act if it had oc- curred within the 6-month period prior to the filing of the charge. It could in any event he considered as demonstrat- ing some union animus supporting a finding of a willingness by Respondent to resort to discriminatory action. But even this degree of union animus losses significance when consid- ered in relation to the size of Respondent's work forceR and the remoteness in time from the alleged discriminatory dis- charge. Timing along may or may not serve to establish discrimi- natory motivation in a discharge but it is always a material fact to be considered. See. e.g., Lawrence Institute of 7Tech- nologv, 196 NI.RB 28 (1972). The timing of Sparks' dis- charge in relation to his union activities and Respondent's knowledge thereof do not support a finding of' a pretextual discharge here. here was no evidence of a union campaign in progress at the time of Sparks' discharge which would l TIhe charge. ( (' txh l(a), indicate, Respondent emploss 7(X) 800" workers 33 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause Respondent concern because of his previous pro- union activities. 9 Respondent's knowledge of Sparks' union sympathies and activity predated his discharge by more than 7 months.20 Indeed, Respondent's knowledge that Sparks had attended a union party predated his discharge by several years. In view of the foregoing, and even if Sparks' discharge may be considered inequitable when the offense is weighed against his tenure as a good employee, I am not convinced that any such inequity in the discharge establishes affirma- tively or persuasively on this record that Respondent, in discharging Sparks, was motivated by a desire to rid itself 19 There is some dispute even between the General Counsel's witnesses regarding the extent of Sparks' union activities which would serve to distin- guish him as a special object for retaliation by Respondent. Employee Glenn, admittedly a close friend and acquaintance of Sparks, testified that he did not know whether Sparks was for the Union or not. Similarly, Reid Queen, Jr., an employee of Respondent, testified that he probably had more contact with Sparks than any other employee in the plant, and Sparks had once told him that he did not have anything to do with the last union campaign. Respondent's witness, Robert Ayers, of Ayers Food Service, also testified that in September or October Sparks "swore" to him that he was "not working for the Union." Since Respondent admittedly suspected that Sparks had passed out union cards, I find it unnecessary to consider any conflicts between the above witnesses and Sparks regarding the extent of his activity in behalf of the Union. "Cf. Civic Center Sports, Inc., 206 NLRB 428, 435 (1973), where the Board found a 3-month delay between union activity and a discharge did not support a conclusion that the discharge was discriminatory. of a union adherent. The General Counsel bears the burden of proof in showing by a preponderance of evidence that an employee was discharged for union activities. J. P. Sevens and Co. Inc., 163 NLRB 217, 218 (1967), enfd. 388 F.2d 896 (2d Cir. 1967). That burden has not been sustained in this case. Accordingly, and in view of the admitted and plausi- ble basis for at least some form of disciplinary action against Sparks and in the absence of persuasive evidence of a causal link between Sparks' discharge and his union ac- tivity, I find that Respondent did not violate Section 8(a)(3) and (I) of the Act as alleged in the complaint. I shall, there- fore, recommend that the complaint be dismissed in its en- tirety. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent has not committed unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by suspending and discharging Mike Lee Sparks on December 2 and 7 respectively and subsequently failing and refusing to reinstate him. 3. Respondent has engaged in no unfair labor practices violative of the Act. [Recommended Order for dismissal omitted from publi- cation.] 34