General Thermodynamics, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Thermodynamics, Inc. and Thomas Hubred. Case 30-CA-4913 October 31, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBIHRS JENKINS AND PNI-I.I.O On June 30, 1980, Administrative Law Judge James T. Youngblood issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief answering the General Coun- sel's exceptions. 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, find- ings,' and conclusions of the Administrative Law Judge, except as set forth below. We agree with the Administrative Law Judge, for the reasons stated by him, that Respondent did not violate Section 8(a)(3) of the Act in discharg- ing Thomas Hubred. However, we do not agree with the Administra- tive Law Judge that Respondent did not violate Section 8(a)(l) by posting overly broad no-solicita- tion/no-distribution rules. The General Counsel has excepted to this dismissal, and we find merit in the General Counsel's exceptions. On October 23, 1978, Respondent posted in the employees' lunchroom a manual of new regula- tions, including a prohibition of: 9. Soliciting, collecting or selling for any non-work related purpose on Company time, without permission of management, the unau- thorized collection, solicitation or canvassing of employees on Company premises at any time. 10. Distribution of unauthorized literature, written or printed matter, on Company prem- ises, or posting, defacing or removing notices, signs or writing, in any form, on bulletin boards or other Company property without special approval of management. T 1he General Counsel has excepled Ito certain credibility findings made by the Administratise Lasw Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolulions are incorrect Sandard Drv Wall Products. Ic., 91 NRB 544 (1950()), enfd 18 Fd 36h2 3d ir. 1951). We have arefully examined the record and find no hasis for re- versing hi, findings. 253 NLRB No. 21 These rules were to become effective on Novem- ber 1. Respondent's personnel director testified that this posting was removed prior to November I and that the rules were never enforced. In recommending dismissal of the complaint alle- gations concerning these rules, the Administrative Law Judge concluded that it was unnecessary to determine whether the no-solicitation/no-distribu- tion rules violated Section 8(a)( ) of the Act be- cause the rules were never implemented. We dis- agree. The rules were overly broad facially. See Allis Chalmers Corporation, 224 NLRB 1199, 1211- 12 (1976). Moreover, the posting in itself was suffi- cient promulgation to constitute a violation. Even if Respondent decided privately not to implement these rules and removed them before their effective date of November 1, there is no evidence that Re- spondent made any effort to inform employees of this rescission. Sunnyland Packing Company, 227 NLRB 590, 595 (1976). Accordingly, we conclude that by posting these rules Respondent violated Section 8(a)(l). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, General Thermodynamics, Inc., Oak Creek, Wis- consin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining any rule or regulation prohibiting its employees during their nonworking time from distributing handbills or similar literature on behalf of any labor organization in nonworking areas of Respondent's property. (b) Maintaining any rule or regulation prohibit- ing its employees during their nonworking time on Respondent's property from soliciting their fellow employees to join or support any labor organiza- tion. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights to self-organization, to form, join, or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: H( (;I NIR \A. tRM()I)YNANMICS. INC (a) Post at its plant in Oak Creek, Wisconsin, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representatiNc. shall he posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 30. in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS HERIBY :FURTHIIR ORI)IFRI) that the com- plaint be, and it hereby is, dismissed in all other re- spects. In the esent that his Order is enforced h a Judgment of a United States Court of A ppeal,, he ord, in he nolice readilng "o'ti cd h' Order of the Natioal l.abor Rclaltions oa;rd" shall read "P'orted Iursu- ant to a Judgrtmcrll t t' r0 nted State, ('Court of Appeals Lnforcing an Order of the National Labor Relations Blard APPENDIX NOTICE To EMPI.OYII.S POSTE) Y ORI)ER OF THL NATIONAI. LABOR REl.ATIONS BOARI) An Agency of the United States Government WE Will. NOT maintain any rule or regula- tion which prohibits our employees from en- gaging in solicitation on behalf of any labor organization during their nonworking time in any area of our premises. WE WIl.L NOT maintain any rule or regula- tion which prohibits employees from engaging in distribution of handbills or other literature on behalf of any labor organization during their nonworking time in nonwork areas of our property. WE WILL. NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. GENERAl. THERMODYNAMICS, INC. DECISION STATEMIEN'T OF THI CASE JAMES T. YOUNGBt OOI), Administrative Law Judge: The complaint which issued on November 22, 1978, al- leges that General Thermodynamics, Inc. (herein called General or the Respondent), maintained and enforced in- valid no-solicitation and no-distribution rules prohibiting employees from participating in union organiztig acti i- tics o(11 nllo ork time in nonwork areas, in violatihin of Section 8(a)() oif the Actl. and discriminaltoril) dis- char-ged employee Ihromas iluhrcd because of his activi- ties o behalf of arid sympathies for United Stcelworkers of America, AF. CI() (hcrcin called the Union), and/or for engaging in concerted activities proteccted hv the Act. in violation of Sction X(a)(3) and (I) of' Ihl Act. 'Ihe Respondent filed an answ er admitting the urisdic- tional allegations of the complaint and that the Uion was a labor organilzation, but denied the comnmission of alN: unfair labor practices. This case was heard before nice i Mil\aaulkee, Wisconsin, o Nlarch 29 and 30(), 1979 Upon the crlire record and frorim ni ,M obscrr, alt of the \Aitnesscs, and their demeanor, and after du c onsid- eration of the briefs filed by the Respondent al;d the General Counsel. I hereb make the folloh ing: FINDIN(iS NI) CONC I LSIONS I. I Hnt tSINISS 01- Til RSPONII N I The Respondent is a Wisconsin corporation engaged in the manufacture of heat transfer equipment at its ()ak Creek, Wisconsin, location. The Respondent admits, and I find, that it is an employer engaged in commerce as de- fined in Section 2(2). (6), and (7) of the Act. 11. ltl I ABOR OR(ANIZA. ION IN'OI VI 1) The Respondent admits. and I find, that the Union is nok and has been a labor organization as defined in Seec- tioin 2(5) of the Act. il, Tit Al (Ll) UNIt AItR AOR PRAC I ItIS Thomas A. Huhred began mployment with the Re- spondent on July 16. 1975, as a production welder in the fabrication department. At the time of his April 17. 1978, discharge Hubred was the Respondent's highest paid welder. earning approximately $6.17 an hour. Shortly before his discharge on April 17. 1978, Hubred received a raise. The record reflects that Hubred often worked considerable overtime, was an excellent worker, and re- ceived very good evaluations. In May 1976, the Union filed a representation petition which began an organizational campaign at the Respond- ent's facility; this culminated in a June 17, 1976, repre- sentational election in which the Union failed to obtain a majority of valid votes cast. Throughout this 1976 elec- tion campaign, according to the testimony of Huhred he opposed the Union and did not sign an authorization card. He also actively supported the Respondent's cam- paign against the Union. In this connection Hubred also talked to coworkers in an attempt to persuade them to vote againstthe Union in the 1976 election. On November 8, 1977. the Union filed another repre- sentation petition seeking to represent the Respondent's production and maintenance employees. An election was held on January 6, 1978, in which the Union again failed to secure a majority of the votes cast. During this union organizing campaign Hubred did a turnabout, and from the inception of this campaign sup- ported the Union. He was no longer the trusted confi- I)C t'ISI()NS ()[ NA I I()NAI I At()R RA I (ONS I()i\RI) dant who could he relied on by the Respondent In this regard. lie signed all authorizatio card and d a checkoff card on November 7, 1978. ubred also solicited co- workers to sign checkoff and authoriation cards and re- turned 10 to 15 signed cards to tire Union. Iubred also attended many organizalional meetings, and during he campaign after the employees had composed and d rote newsletters in response to employer campaign literature, Hubred helped disseminate these newsletters. D)urinig the campaign and working hours. ubred wore union cam- paign buttons pinned to his wsork shirt anid also had but- tons hung on the wall in his welding booth which were unquestionably visible to all who might come up on them. During the Respondent's antiunion campaign supervi- sors distributed approximately 40 or 50 pieces of litera- lure to each employee. oth Hubred and welder John Befus testified that their supervisor, David Van Hlecke, distributed antiunion literature, and would return to their welding booth and ask their opinion as to what they had read. Hubred testified that he always made his prounion opinions clear to Van Hecke. Van Hecke admitted that he asked Hubred his opinion about the voluminous litera- ture that the Respondent had distributed. Although Van Hecke admitted speaking to Hubred on a daily basis during the second campaign, his testimony indicated that he had no knowledge of Hubred's union sympathies. Plant Superintendent, Ed Jilek, also denied knowledge of Hubred's prounion sympathies and activities, even though he admitted to frequent worktinie contact with Hubred during the 1977 78 campaign. According to Hubred, Robert Panthofer, the Respond- ent's vice president, had a discussion with Hubred ap- proximately I week prior to the January 6, 1978, elec- tion. During this conversation Hubred told Panthofer that the Respondent was conducting a ridiculous antiun- ion campaign and by way of example cited an instance in which Panthofer had made a female employee cry. Hubred also told Panthofer that a cooperative effort by the Union and the Respondent could make the Respond- ent a better place to work. Panthofer replied that a union would only hamper the Respondent's progress and would only look out for themselves and for their month- ly dues and they would not do anything for the little guy. Approximately a week prior to his discharge, Hubred asked Jilek what happened to the employees' past due production bonus. Jilek replied, "You guys screwed yourself." And when he was asked what he meant by this statement Jilek told Hubred "there was no money because of low production during the campaign and if there were it had been spent on the labor attorney." The General Counsel argues that the Respondent dis- charged Hubred because of his activities on behalf of the Union, in an effort to discourage union membership, or because of his protected concerted activities, The Re- spondent on the other hand contends that Hubred's dis- charge had nothing to do with the Union but was be- cause of his continuing insubordination starting on De- cember 6, 1977, and culminating on April 17, 1978, the date on which Hubred was ultimately discharged, lihe first alleged incident of inutlordiliationl occurred oil I)ecemlber 6, 1977 According to the Iestinlony of loin uhbred, lihe ad anollher employee, ill ()rr, ere statiding talking to each other in their welding booth wheii tlihev were approached by Supervisor Was';hkuhn Washkuhni as inot the supervisor over Hlubred and ()rr, however, lie was a sperx isor on the second shift. Ac- corditig to luhbrcd, Washkuhi had been stadinig salch- ing he aindc ()rr talk, and he approtached themni arid i- forrmed them that he had bccn watching them "hull shit- ling" and suggested that they get to work. uhred said thci' nade ino response to Was;lkuhnl, they ust went back to work. Bill Orr testiied that on l)ecemhber 6, 1977, he was in the welding booth talking to lom llubred. At or about 4 p.r., Waslikuhn walked in and badgered both of them an(d stuck his head in behwccn them and said. "What are you guys talking about'" ()rr said lie told him that they were just discussing what hie would be working o to- night, and Washkuhi said "Well quit your bull shitting andl get back to work." ()rr said the> both started to work. According to ()rr, there ...as nothing said by Washkuhrl about an oral warning to hinm at that time. iHe said he did not hear lubrcd use any swear words to Washkuhn. Steve Washkuhn testified that the conversation oc- curred in the earlier part of the second shift. Ile said that he had noticed that Tom Hubred anid ill Orr wcre staniling in the welding booth speaking with each other. He said he decided to go into the welding booth and see xshat they were talking about. So he addressed the two of them at the same time and told them that if they wecre not talking about comiipalny business they should get hack to work. lie said that Bill Orr did not say anything at that time but Toniom Hured became angry, raised his voice, arid said, "Who are you?' How do you know what I'm saying or what we're thinking''" Washkuhn said that Hubred got abusive anid used obscene language arid Washkuhn said, "Let's go up in the office and talk about it." iHe said that this made Hubred more angry, anid Hubred sid he was not going to go up into the office with him. He said he did not give Hubred an oral warn- ing at the time and when Hubred refused to go to the office with him he just left the situation. e said that he told Hubred that he could expect to get some form of disciplinary action taken against him and that he ,was going to speak with upper management about the prob- lem. According to Washkuhn, another supervisor, Dennis Wroblewski, was present. Washkuhn said that following this incident he made a handwrritten copy of the incident and put a copy on Superintendent Jilek's desk and a copy on Bob Panthofer's desk. He said that several months after that he also had an occasion to have a copy typewritten. Dennis Wroblewski testified that on December 6, 1977, he was working in the welding booth and he saw Steve Washkuhn walk up to Tom Hubred and tell him to get back to work and stop talking. Hubred replied to Steve Washkuhn something to the effect "it's none of his business," and that Steve is not his supervisor. He said there were a few obscenities used but lie could not recall 182 (iI NIRAI. ILERMO()DYNAMICS INC( any specific languaIe. lie stated that I'llio,ilng tile inci- dent Stt.\.e Waslhkuhnl discussed it with hillm and Wash- kuhn wrote dwln wlhat had happened. lie said that he read over thle account ad it w.% as just like it happened. He said Washkuhn w rote thle account up in his own handwriting in the supcr ,isor's oflice. He testified that he did not recall seeing Bill Orr present at the time. lie stated that he heard so methinlg mentioined about an oral warning, but the does not recall whether Washkuhni said he was going to give him an oral warning or not. There is no doubt that this incident did occur on De- cember 6, 1977. If you accept the version of Hubred and Orr, the only thing occurred was that Washkuhn told them to return to work and cut out their "bull shitting" which they did without any further conversation. Ac- cording to Washkuhn and Wroblewski, when Washkuhn informed Orr and Hubred to return to work Hubred questioned Orr's authority in making him return to work asking him who "in the hell" he thought he was and using obscenities and profanity. According to Washkuhn he indicated to Hubred that this deserved an oral warn- ing and that he was going to discuss it with higher man- agement. Washkuhn and Wroblewski testified that Wash- kuhn did in fact make a handwritten copy of a report on this incident and placed it in Hubred's personnel file. However this handwritten copy apparently got lost during the unemployment compensation hearing, and at some later date Washkuhn made a typewritten account of the incident. To the extent that it makes a difference, I credit the testimony of Washkuhn and Wroblewski over that of Hubred and Orr. In this regard if nothing more was said other than Washkuhn told them to return to work and they did not say another word but returned to work it is hardly likely that Washkuhn would have made a written report on this item. I observed Hubred very carefully during the hearing and he did not strike me as one who would let such a statement lie. It is my conclu- sion that he responded to Washkuhn with the comments as related by Washkuhn. Thus, it is my conclusion that Hubred became very angry and did in fact use obsceni- ties and profanity as set forth by Washkuhn and Wrob- lewski. On February 11, 1978, Hubred again had another run- in with Supervisor Washkuhn. Again this incident took place in the welding booth, and present were Tom Hubred, Bill Orr, and Steve Washkuhn. The incident oc- curred approximately the same time of day as that on December 6, 1977. According to Hubred, Washkuhn came into the welding department with a completed ra- diator that needed a welding repair. He stated that work is normally bought into his department by his supervisor, Dave Van Hecke. He testified that Washkuhn had the radiator that was in need of repair and he explained to Hubred what he wanted him to do. Hubred said he ex- amined what had to be done and he told Washkuhn that the radiator was not prepared properly, that it was ground paper thin, and that in his opinion it would have to take in excess of 30 minutes to repair it as it was. He said he told Washkuhn that if it had been prepared prop- erly and not ground paper thin that it would have only been less than a 5-minute job. He testified that Washkuhn told him, "I don't give a shit how the damn thing was supposed to he prepared. This is the way ' Ed Jilek said to do it alnd (iov I'm telling you to do it." Hubred said that lie asked Ste.e Washkuhn, "If ELd Jilek tlls you to kiss his ass, d(o you kiss it?" At this point Steve Wasttkuhn left the welding booth. uhred stated there was no swearing other than what he said about Ed Jilek, anl there was nothing said about an oral warning. ()rr testified that he was in the booth at this time arid that oWashkuhn brought over a radiator for repair that had evidently been ground down to nothing. He said they told Steve Washkuhn that the radiator had been ground down into nothing, and that a simple 2-minute job had been turned into a 30-minute job. ()rr said he guessed Washkuhn did not like them saying that to him because he was a supervisor. Orr said that after they told Washkuhnri that he should hae brought it there in the first place, Washkuhn said he did not "give a shit," that Ed Jilek said that to bring the radiator to the welders. Washkuhn also said he did not "give a fuck, just get the damn thing done." According to Orr, Hubred did not use any profane or obscene language towards Washkuhn. According to Washkuhn on the evening of February 11, 1978, he was standing about 30 to 40 feet from the welding booth and as he looked in that direction he saw Hubred waving him over. He went to the welding booth to see what Hubred wanted. As he arrived Hubred indi- cated a steel tank from a radiator and said something to the effect, "what the hell do you call that?" Washkuhn said that he recognized the tank as one that he had been instructed to have someone grind down. It had a leak in it and there was a crack in it. He assigned one of his em- ployees to do the grinding, and the employee in doing the grinding gouged the tank. He said it was a poor job and that that was easily seen. He said that Hubred said to him. "What the hell do you call that? . . . who the hell do you think you are? Who told you to do that?" Washkuhn said that Ed Jilek told him to do that. Hubred replied, "If Jilek told you to shit would you shit?" He said Hubred kept on going on and rambling, and Wash- kuhn did not raise his voice, threaten, or warn Hubred in anyway. But Hubred said that "from now on if there is any grinding to be done we will do it, you and your people just leave it for us." Washkuhn said that Hubred's supervisor, Dave Van Hecke, was present at the time and so he just remained quiet because he felt that Dave Van Hecke was his direct supervisor. Washkuhn said that he did not recall making a written report on this in- cident, but that he did at a later date make a typewritten one of this as well as the December 6, 1977, incident. According to Dave Van Hecke on February 11, 1978. while he was making his rounds and was going into the welding booth he saw Tom Hubred and Steve W ash- kuhn arguing. He said Hubred was upset at Washkuhn because he had to do the radiator job. He said he heard Hubred using some bad words that he did not like. He said he told Hubred, he was kind of swearing at Wash- kuhn, "You never swear at a supervisor, I don't care who he is." He said Hubred was working on some kind of a tank that had a large hole in it, and Hubred said it was stupid the way it was done. Hubred did not like it, and he was yelling at Steve Washkuhn for this. He said IX. I)F!CISI()NS ():OF NA'II()NAI. I.AIB()R RFL~.A''IONS B()ARi) Hubred used obscene language at the time, hut he did not recall what words were used. Whatever version is accepted of this incident, it is clear that at one point Hubred was insubordinate to Washkuhn when he mentioned Ed Jilek. This is clear in- subordination to his supervisor. In any event, this is just another incident in which Tom Hubred rail afoul of his supervisors. There is clearly nothing in this incident which would indicate that it was brought about, or had anything to do with, union activities. The next incident occurred on April 11, 1978. On the morning of April 11, 1978, Dave Van Hecke went to the welding booth and assigned a job to welder John Befus. This job consisted of several sheets of metal in which there were a number of holes drilled, and Befus was to fill in these holes with weld. Befus was a new welder, and he asked Tom Hubred if there was not a better and simple way to accomplish the task rather than that pro- posed by Dave Van Hecke. Hubred told Befus that he felt it would have been much more feasible to rerun the job completely from the beginning and not to make the repair. At this point Hubred told Befus to page Ed Hart, the assistant superintendent, to get his views. When Befus explained to Hubred that he had had some dis- agreements with Ed Hart, and suggested that Hubred call Ed Hart, Hubred volunteered and had Ed Hart paged. Ed Hart came to the weld booth, listened to Hubred's remarks, and then contacted Van Hecke. And after learning how much time it would take to get new steel he agreed with Van Hecke that the metal should be filled with weld. Van Hecke heard the page of Ed Hart and had noticed his appearance in the welding booth. Immediately following the discussion with Ed Hart, Van Hecke returned to the welding booth and accused Befus of going over his head, and told Befus that if he ever did that again he would be fired. Hubred, hearing this, in- formed Van Hecke that it was he and not Befus who was responsible for summoning Ed Hart into the weld booth. Van Hecke threatened Hubred to take back Hubred's raise in the event this occurred again. Al- though Dave Van Hecke indicated in his testimony that he told Hubred that he was going to give him an oral warning, it does not appear that any oral warning was ever given for this incident. According to Hubred, later in the afternoon of that day Dave Van Hecke came in the welding booth with a blueprint in one hand and fabricated steel parts in his other hand. According to Hubred, Van Hecke set the parts on a table, unrolled the blueprint, and showed it to him, and informed Hubred that he wanted him to do the job. Hubred said that he measured the parts with the tape and noticed a discrepancy between the measurement on the tape and that of the print. He said he showed the discrepancy to Van Hecke, who took the print from his hand and shoved it into his face, crinkling it against his face, and said, "You know how to read a print, read it." Van Hecke then left the welding booth. According to Hubred he took the print to the quality control manager, and explained to him the discrepancy. Later, the quality control manager returned to the welding booth with a corrected print, and informed Hubred that the print was wrong. that he had corrected it, and that he should run the job. Huhbred testified that shortly thereafter Dave Van Hecke came into the welding booth. He smiled at Hubred and said, "Are there any more problems." Hubred said that he was mad because Van Hecke had just shoved the blueprint in his face, and he told Van Hecke "don't ask." According to Hubred, Van Hecke said that he was going to give him an oral warning. When Hubred refused to respond Van Hecke said he was going to give him another oral warning. When Hubred did not reply at this time, he was informed by Van Hecke that he was going to give him a 3-day layoff. Hubred said that he informed Van Hecke that he should check with Bob Panthofer before he laid him off and Van Hecke told him that he did not have to check with anyone. Van Hecke said that he was laid off for 3 days and should leave. Whereupon Hubred left the plant. Hubred returned to the plant on Monday, April 17, 1978. John Befus testified that he heard Van Hecke and Hubred having a disagreement over a job that Hubred was doing. He said although the curtain that separates the welding booth was pulled he could see Dave Van Hecke standing next to Tom Hubred with a print in his hand and Hubred was trying to show Van Hecke a prob- lem. He said that Van Hecke took the print away from Hubred and threw it at him and said, "You know how to read prints," and left. He said shortly thereafter Van Hecke returned and he heard him ask Tom Hubred if he had any problems. He heard them arguing but all he heard was the word "lay-off." Van Hecke also testified to this incident. Van Hecke did not mention a blueprint being involved in this inci- dent, but he did testify that he went to the welding booth and asked Hubred if he was having any problems on the 251 side members which Hubred was working on. He testified that Hubred refused to answer him and he told Hubred, "I want to know." And he just refused to answer. Van Hecke said he told Hubred that he would give him an oral warning for refusing to answer, and Hubred told him, "You can stick your oral warning up your ass." Whereupon, Van Hecke said, "I'm going to give you another warning." And Hubred said, "Warn- ings don't mean nothing." Hubred then started to give Van Hecke a hard time and Van Hecke said, "I'll give you a three day layoff." Dave Van Hecke testified that the reasons for giving the 3-day layoff were because Hubred refused to answer him, was swearing at him, and told him to stick the oral warning up his "ass." Hubred testified that he returned to work the follow- ing Monday morning, April 17, 1978, around 6:30 or 7 a.m. He testified that he worked until about 2 p.m. at which time he was informed by Van Hecke that Ed Jilek wanted to see him in the office upstairs. He said that he went into the office, and Ed Jilek told him to sit down. Jilek looked at him and said, "Tom, I don't know what we can do with you anymore. That you are going to be fired." Hubred said that Van Hecke appeared as though he was about ready to cry, and Van Hecke said to Jilek, "Ed, I don't want this to happen. Tom is one of my best employees. We can work things out. I'll accept responsi- 194 (GINERAL THERMO()YNAMICS INC bility for anything that has happened." Hubred said that Ed Jilek did not respond to Van Hecke. tHe said that Jilek turned to him and said that he had a right to see Bob Panthofer if he wanted to. Hubred said he exercised that right and Jilek then picked up the phone and asked Bob Panthofer to come into the office. Van Hecke repeated to Bob P'anthofer what he had told Ed Jilek about not wanting to have Hubred fired and that he would accept responsibility for anything that happened. According to Hubred, Bob Panthofer looked at him and said, "I don't give a shit. I'm sick of this fuck- ing shit. I'm not running a goddam babysitting service here. And when you refused that letter you more or less told me to stick it up my ass."' Hubred said he replied to Panthofer, "Bob, you are not going to get me upset," to which Panthofer replied, "God dam it, you got me upset" and he opened the door and walked out. At this point Hubred said that he got up, opened the door, and walked to his locker about 30 feet away. He said that Ed Jilek followed him and told him he wanted to check his toolbox. Hubred explained that he took his toolbox home with him the other day when he went on the 3-day layoff. Van Hecke testified that early in the morning on April 17, 1978, he gave an assignment to Hubred, and told him he wanted him to do 160 side members. Hubred replied, "I do not have a print." Van Hccke said, "You know where the prints are, you always got them before." Hubred replied, "I need a print." Van Hecke said at that point he got the print for Hubred and laid it on the fix- ture so that he could do the Ih60 side members. He stated that Hubred said, "Show me how to do it." Van Hecke testified that he told him, "You have done this job 25 times before, and I do not think I have to show you how to do it again." Hubred responded again, "Show me how to do it." Van Hecke said, "You know how to do it, why should I have to show you." He said when Hubred did not do the work he just walked out and went to see the plant manager about it. Van Hecke says as he walked away Hubred threw the blueprint on the floor. Van Hecke stated that he went to see Ed Jilek, and told Jilek that Tom Hubred was not going to do the work he had given him, and he was acting as though he did not care and did not want to cooperate with Van Hecke. At this point Van Hecke told Ed Jilek that he thought that they should get rid of him, to which Jilek replied, "Okay." Van Hecke went to Hubred's work location and brought him back to Ed Jilek's office. Van Hecke said that Jilek talked to Hubred and he did not recall exactly what was said, but he said that Bob P'anthofer was called into the meeting at the request of Tom Hubred. 2 Van Hecke said that he made the decision to discharge Hubred and his reasons were for insubordination. Ac- cording to Van Hecke he said that he told Bob Panth- While Huhred was home on his la ioff, a certified or registered letter from Ihe Respondent was dliscred to Huhred's huse In his absence Huhred' wife refused to accept the letter fHuhred tcplained thlt neither he n,r his wift. accepted nl;mail for each ilher this had been a longsl and- ing custom Apparently the refusal of this letter had made ob P'anihofr angry 2 Van Hecke said that he did notl recall exactly hat occurred at this meeting but that he did write up an account and had the secretary tpe ii up This account was offered as Resp Fxh ofer and Ed Jilek that he would be willing to reconsider if they were. According to Van Hecke, Panthofer, and Ed Jilek, Hubred was discharged for recurring insubordi- nation. It is clear from this record that Van Hecke made the decision to terminate Hubred with the acquiescence of Robert Panthofer and Ed Jilek As I have indicated earlier, to the extent that Hubred's testimony differs from that of the witnesses for the Re- spondent, Washkuhn. Van Hecke, Wroblewski, Jilek. Panthofer, it is discredited. As I indicated I carefully ob- served Huhred as he was testifying, and he struck me as one ho would give the smart remarks attributed to him by the supervisors. Moreover, Supervisor Washkuhn has no motive to lie in this matter because he no longer works for the Respondent. Moreover a brother of Wash- kuhn \was discharged by the Respondent for insubordina- tion. The General Counsel has the burden of establishing that the Respondent unlawfully discharged an employee for union activities in an attempt to discourage union membership, or for other concerted activities. So far as I know, this burden is always with the General Counsel and the Respondent does not have to prove its actions were legal or lawful. Here the General Counsel has es- tablished that Hubred was an active supporter of the Union during the 1978 campaign. The record also re- flects that the Respondent was aware of this fact. At this point the iGeneral Counsel's case seems to falter. There is no evidence of any independent 8(a)( I ) violations in- volved in this proceeding. There are no other alleged discriminatees in this complaint, and other than the alle- gation of maintaining an invalid no-solicitation and/or no-distribution rule, there is nothing in this record that would reflect that the Respondent had any unlliorl animus. As I have indicated there is nothing in this record to indicate union animus on the part of this Company. As a matter of fact the record reflects that employee Orr, was a major organizer during the 1978 union campaign, aid : he record retlecti that ll )cltiocher 7 the R espo rldcnt pl sted the folll uing rules i the employee lihr( om and ii the shop. which pri- sided I Soliciting. collecting r selling foir ian non-ssork related pi.- pose on cmpilpa tinme,. ithout permission f mariiagement the Ullii] thoriLed collectiiion, siilatioll or canasling f cinplo cs rn oirtl- parly premises, a any time 2 Distribution of unaulhorluzed literature, ssrilcn or printed matter, on company premles. oir posting, defacing r rnioilng Iii tices, sigls or wriiig, in ay form, on bulletin hoards r ther com- pany property ulithoul specific approal of nmanagemenl The record reflects that this group of rule, together ,ith a mieni from BoHh Panthofer to all eniployce,, dated Monda,) Octobher 23, 1978. si posted in the plant during Ocltoer 1978 The menml from Boh PIanlhtofer to thee employees indicated that the policies relatlc to the plantl rules adi dlsciplinar? actions "uouldl he mplemenlte as OfF Noemhber i. I178h the personnel drector fr (ieneral Thermod nanlic, testlfied at the hearing, withiutl collradicion. that these rules suerc remnoted prl,r to their effcl- tise dtc, that the sser ner distrlhuied. ain d stere neer enl;orced Utnder these cir.ilruIistillces, it is m cinclusionl that these rule, sre necer Implcmencted as' Ihe cre remo,ed prir to No,Ctlrlher 1 178, hecause the tompanl aorney adsised the Compan thl the rules might he uLlasful Accordingls. it is n clusion that t is unnlecessary It decide hcther these rl-.solciltalion and ior nio-dlirlbltiolt rules were in- salid unrder the Act Therefre. it is in recommendatiol Ih lt thetc alle- gations of the complaint he dismissed in their entirely 18s DECISIONS ()F NA'I()NAIL I.AI1()R RELA'I()NS B()ARI) this fact was clearly known to the Company. Orr quit his job in September 1978, after the union election. Shortly after quitting his position Orr sought reemployment by the Company and he was welcomed back with open arms. Furthermore, Orr was placed in a supervisor-lead- man training program and specifically testified that he has not been discriminated against by the Company for his union activities or any other reason. This is hardly the actions of a plant management set on ridding itself of union sympathizers. It is my opinion that Hubred got ex- actly what he deserved. Thus, he got caught in trying Van Hecke "on for size." It is well established that although an employee is en- gaged in union activities at the time of his discharge, this does not prevent an employer from exercising his busi- ness judgment to discharge him for valid cause, and the mere suspicion that an employer may have acted from unlawful motives will not support an adverse finding. Here the Respondent's motives are hardly suspect. It is my conclusion that the General Counsel has failed to es- tablish its burden by substantial evidence that the em- ployer actually acted from unlawful motives and not from a legitimate business reason. Therefore. it is my conclusion that the General Counsel has failed to estab- lish by a preponderance of the evidence that the Re- spondent discriminated against Hubred because of his union activities in order to discourage union membership or because of any concerted activities. Therefore, I shall recommend that this portion of the complaint be dis- missed. Having found that the Respondent has not engaged in violations of the Act as alleged in the complaint, I shall recommend that the complaint be dismissed in its entire- t . CONCI USIO()NS O LAW 1. The Respondent is an employer engaged in com- merce within the meaning of the Act. 2. The Respondent did not, as alleged in the com- plaint, interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. and has not thereby engaged in unfair labor practices within the meaning of Section 8(a)( ) of the Act. 3. The Respondent did not, as alleged in the com- plaint, discharge Thomas Hubred for discriminatory rca- sons, or for concerted protected activities, or because of his union activities, in an attempt to discourage member- ship in the Union in violation of Section 8(a)(3) of the Act. [Recommended Order for dismissal omitted from pub- lication.] 186h