Irving Tanning Co.

6 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD Irving Tanning Company and Local' 592, United Food & Commercial Workers International Union, AFL-CIO. Cases 1CA-19118 and 1- CA-20877 .30 November 1984 DECISION AND ORDER BY •CHAIRMAN DOTSON AND MEMBERS , ZIMMERMAN,AND DENNIS On 16 Augu- A._ 1984 Administrative Law' Judge Joel A. Harmatz iSSUed the 'attached decision. , Ttig' General Counsel filed exceptidns and a supporting' brief, and the Respondent filed an answering , brief. The Respondent alsO filed ; cross-eiceptidns , and, a, supporting brief. 1 , , . The-National Labor Relations Board has delegat- ed its authority in this- proceeding, to a -three-. member panel. - -3 The Board has considered, the decision and .the- record in light of the exceptions and'ibriefs and has decided to affirm the judge's rulings, findings, 1 and' conclusions and to adopt the recommended Order. ' ORDER ' • ' The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The Reapondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950). enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In fn 5 of his decision, the judge discredited Keith Lawler's testimony that Personnel Manager Gabe Hike] told him at the time of his discharge that "they were going to start weeding out the troublemakers " In so doing, the judge relied on his conclusion that "[1]mportant segments of [Lawler's] testimony seemed internally inconsistent," as well as on his ob- servation of Lawler's demeanor Although our review of Lawler's testi- mony reveals no significant inconsistencies, we affirm the judge's credi- bility resolution on demeanor grounds DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge This proceeding was heard by me in Bangor, Maine, on Sep- tember 13 and 14, 1983, and March 22, 1984, on an origi- nal unfair labor practice charge filed on October 1, 1981, and a consolidated complaint issued on May 26, 1983, al- leging that Irving Tanning Company (Respondent) inde- pendently violated Section 8(a)(1) of the Act by coercive interrogation, surveillance of union activity, and by threatening employees with various reprisals, including a statement that a prounion employee had been causing trouble and "troublemakers" would be "weeded out." In addition, the complaint alleged that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Keith Lawler and .Russell Stackhouse' because of their activity on'behalf of the Union In its duly filed answer,. Re- spOndent denied 'that anj, -unfair labor practices were cOnim. ittd. Following 'dose of the hearing briefs were filed by the General Counsel and-Respondent. On the 'entire record m this proCeeding, including my opportunity 'directly to obser,ve the demeanor'of the wit- nesses while' testifying, 1 consideration of the post:- hearing finds . I make the follovjing FINDINGS OF -FACT . . I. JURISDICTION Respondent is a Delaware corporation with a principal office 'and place of business in Hartland, Maine, from which it is engaged in the manufacturer and distribution of,,skins; 'leather, and related products In the course of said operation, Respondent annually ships goods valued in excess of $50,000 from the aforesaid facility directly to points located outside the State of Maine. The complaint alleges, the answer admits, and I find that Respondent is now and`-has been at all times material herein, an employer engaged- in , commerce within the meaning of Section 2(6) and (7) of the Act., THE LABOR ORGANIZATION INVOLVED T,he complaint alleges, the answer admits, , and I find that I,Ocal, 592, United Food' & Commercial Workers International Union, ,AFL-,CIO Js now and at all times material herein has been a labor organization within' the meaning of Section 2(5) of 'the Act. , III. THE ALLEGED UNFAIR LABOR PRACTICES A Background There is no history of collective bargaining for the 500 production and maintenance employees at Respondent's Hartland facility. In August 1981, the Union opened an organization campaign at that location Thereafter, pur- suant to an RC petition filed on February 12, 1982, an election was conducted on May 7, 1982 The Union failed to obtain designation by a vote of 172 for represen- tation and 255 against. On August 11, 1982, the Union's loss at the polls was confirmed, when the Regional Di- rector for Region 1 issued a "Certification of Results." The instant complaint includes allegations that during the early stages of the campaign in September 1981, some 5 months prior to the filing of the representation petition, Supervisors Keith Bubar and Doug Robinson interfered with the organizational effort by cOercive in- terrogation, threats, and surveillance. Beyond that, the more critical issues of discrimination arose well after the I The fact that credibility resolutions hereinafter made are accompa- nied by objective rationale does not discount, but merely is intended to reinforce, impressions gained from my first-hand observation of the wit- nesses Furthermore, testimony, whether or not contradicted, is rejected to the extent that It Includes matter which might not be reconciled with expressly credited evidence See Professional Care, Inc. 271 NLRB 324 fn 2 (1984) 273 NLRB- No. 2 IRVING TANNING CO 7 termination of the 1981-1982 organization dnve. 2 Thus, Keith Lawler was terminated about November 23, 1982, 6 Months after the election, while Russell Stackhouse was terminated on March 31, 1983, almost 11 months after the election Respondent argues that both termina- tions were legitimately founded upon the failure of the dischargees to comply with attendance policies, while the General Counsel urges that the reasons assigned were; pretextual and incredible, with both having been terminated as belated punishment for their union activity B Concluding Findings 1. Interference, restraint, and coercion during the organization campaign • a By Keith Bubar f' The independent 8(a)(1) allegations imputing miscon- &let, to Supervisor Keith Bubar all occurred in early September 1981 during the early stages of the campaign, some 5 months prior to the filing of the representation petition and 8 months prior to the election held on May 7, 198 - In this connection, Lester Summerhill, a former em- ployee discharged by Respondent in September 1981, testified that his supervisor, Bubar, ' following a union meeting held during the prior week, approached Sum- merhill and coworker Julius Lawrence and inquired as to whether they "heard anything about the Union or seen any of the union cards going around." Bubar allegedly went on to state, "The Union wouldn't help you guys up here," in that they would not clean up the messy work- ing conditions at the tannery. He added that it would hurt, because "they" would cut employees down to 8 hours and require employees to confine themselves to their specific jobs. Lawrence, who also had not been employed by Re- spondent for 2-1/2 years prior to his testimony, gave a slightly different version, accusing Bubar of stating: "You' know if the union gets in it will cut your hours, you'll Jose your overtime, you'll be restricted to one job," and "they will not be able to help us' much in cleaning the tannery up with its odors and stuff like that " -Bubar also allegedly asked Lawrence if he had any union cards Lawrence testified to a further conversation with Bubar in that same month. He claims that after Summer- hill was fired, in the presence of two other employees, Bubai stated, "Well, you know the union can hurt you," explaining that "the plant would not be able to pay union scales, it would close down." My assessment of Law- rence's credibility has not overlooked the fact that the complaint includes no allegation suggesting that Bubar at any time threatened that the plant would close in the event of unionization . Bubar testified that he could not recall ever having discussed the Union with Summerhill or Lawrence. He admits to overhearing a conversation between Lawrence and another employee Stanley Williamson, during which, from Lawrence„ he first learned that unions placed re- strictions on job performance. He denied ever question- ing employees concerning union activity, ever informing employees that the Company would close down if they voted for the Union, or to ever informing Summerhill or Lawrence that the Union would reduce work to 8 hours or eliminate overtime or that it would cause the Compa- ny to do so Though the statements imputed to Bubar were made some 2 years ago, he indicated that if he had made them, he believes he would have recalled having done so He did not remember the conversation de- scribed by Lawrence and Summerhill. Bubar impressed me as straightforward and honest. His implication by the two former employees is not shown by credible evidence to have been associated with any pattern of unlawful in- terference , with employee rights by supervisors during the preelection period I prefer Bubar's testimony over that of previously terminated employees Summerhill and Lawrence. b By Doug Robinson The allegations involving Robinson rest on the uncor- roborated testimony of Fred Loubier, whose employ- ment with Respondent ended in December 1981 when he was laid off Loubier testified that in September 1981 he was unloading a truck when coworker Terry Rowel so- licited signatures to union authorization cards from among Loubier's crew. Loubier assertedly signed a card at the time Respondent is charged with unlawful surveil- lance under Section 8(a)(1), because, according to Lou- bier, Robinson stood nearby observing this entire proc- ess However, Loubier admitted that Robinson was .standing at that location prior to Rowel's arrival and never moved from said position where "he often stood around . . and watched us unload the conveyor belt" On the face of Loubier's testimony it is apparent that the presence of Supervisor Robinson was known to employ- ees at the time they opted to suspend work briefly to engage in union activity, , a presence dictated by legiti- mate considerations totally unrelated to union activity Under established Board precedent, an employer cannot be faulted where union activity is willfully conducted on plant premises under the eyes of .company representa- tives 3 The allegation that Respondent thereby engaged in surveillance violative of Section 8(a)(1) of the Act shall be dismissed. Loubier went on to testify that during the same work shift, but later in the day, Robinson unlawfully threat- ened closure of the plant while Loubier and a coworker were discussing the Union Loubier described the inci- dent as follows. Well, me and Manuel [a coworker] was talking about the Union, and he [Robinson] spoke up, he said, "maybe if the Union—Well if I remember right, he said, "probably if the Union got in that Tanning might close the doors" 2 See testimony of Robert Perry. a nonemployee union organizer, who 3 See Knogo Corp. 265 NLRB 935. 945 (1982), and cases cited at fn 33 related that the recent organization effort ended with the election thereof 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Robinson admitted that he might have ex- pressed to employees that he did not think the Union would help in any way, he denied the closedown threat. Here again, in the face of Loubier's professed uncertain- ty as to the precise words used, the testimony of Super- visor Robinson is regarded as more reliable. It is pre- ferred over the uncorroborated testimony of this former employee. Hence the allegation that Respondent violated Section 8(a)(1) in this respect shall be dismissed. 2. The alleged discrimination a. The discharge of Keith Lawler Lawler was among the early supporters of the Union In August 1981 he executed a union authorization card and distributed designations to coworkers, securing sig- natures, and returning completed cards and a list of em- ployee names and addresses to the Union. He served on the in-plant organizing committee after its establishment in December 1981, attended union meetings, and distrib- uted literature at plant gates as well as within the plant, on several occasions. He was among the team that at- tended the postelection vote count on May 7; 1982 , Re- spondent acknowledged that Lawler was a known union adherent. Lawler was hired in the spring of 1977 At times mate- rial his immediate supervisor was Keith Osborne. The decision to discharge him was made on Tuesday, No- vember 23, 1982. 4 Lawler, who had recently separated from his wife, spent the previous weekend establishing a new residence by moving to a cabin he owned in ,the woods. The cabin -was located some. 3 miles from the highway and some 12 to 14 miles from the plant. He had neither automobile, nor telephone. In order to get to work, Lawler planned to walk to the highway, and to hitchhike the balance of the trip. He was aware of the Company's requirement that he call in when absent. ` Lawler's work hours were from 6 a m to 2:30 p.m He admittedly was absent on Monday, November 22, with- out calling in. According to his testimony, on Tuesday, November 23, he walked the 3/miles to the highway, then hitched a ride for the 12- to 14-mile trip to the plant, arriving at work about 5.30 a m, only to find that his timecard was not in the rack Osborne allegedly told Lawler that it had been pulled because he missed work Lawler explained that he had been sick and had moved over the weekend. Osborne responded that Lawler would have to take his case to Personnel Manager Gabe Hikel. Lawler did so, and according to the sense of his testimony, Hikel was not aware of the reason for the' ter- mination but after telephoning Osborne, told Lawler that "they was letting me go because of absenteeism." Lawler argued that there were others including his estranged wife, that had missed more time than he had and that "a lot of them never, called in." 5 4 All dates in this section refer to 1982 unless otherwise indicated The date that Lawler was informed of his termination is in conflict 5 According to Lawler, in response to this plea, Hikel side-stepped the observation, by stating "that they were going to start weeding out the troublemakers" Although Hikel was not questioned concerning this statement, and hence Lawler's testimony stands uncontradicted, I did not believe that any such statement was made Lawler was considered unrell- In order to maintain the instant allegation, the General Counsel, by virtue of Wright Line, 251 NLRB 1083 (1980), bears the initial burden of presenting evidence "sufficient to support the inference that protected con- duct was a motivating factor in the employer's decision Initially, the General Counsel's theory that Lawler was terminated on grounds proscribed by Section 8(a)(3) and (1) of the Act is complicated by the fact that the timing was remote from any form of protected activity 6 In ad- dition, there is no evidence that Respondent prior there- to had engaged in any conduct reflecting a propensity on its part to engage in unlawful discrimination."' Indeed, on the credible evidence the General Counsel's affirmative proof is limited to establishing that a known union adher- ent was terminated 5 months after culmination of an or- ganization drive in which employees rejected representa- tion in resounding fashion. The General Counsel's cause is further complicated by the concession that in 1981 Lawler was absent 12 days, 10 of which were either Monday ,or Friday. During that period he received warnings in June and December 1981. In 1982 prior to his discharge, he declined to report to work on 8 occa- sions, half of which resulted in extended weekends. Against this background, Lawler engaged in a clear and knowing breach of Respondent's attendance policy by able Important segments of his testimony seemed Internally inconsistent As Respondent observes, the remark he attributes to Hikel, being a less than equivocal admission of wrongful motive, is difficult to reconcile with the sole theory of a violation available to the General Counsel on this record Thus, Lawler's cause rests upon assumption that Respondent, following the termination of union activity, patientl3., with predetermina- tion, lay in wait for the development of grounds for discharge in order to eliminate this union protagonist Yet, if Lawler is to be believed. Hikel betrayed this delicate scheme by admitting to illegality in resisting Lawler's protests during the discharge process Considering the circum- stances, together with my adverse reaction to the demeanor of Lawler in observing him' testify, his testimony in this respect is rejected In all likeli- hood, failure to examine Hikel in this respect was attributable to over- sight The allegation that Respondent Independently violated Sec 8(a)(I) in this connection is therefore dismissed 6 The General Counsel engaged in an unpersuasive effort to establish that Lawler's union activity persisted following the May election Robert Perry, an organizer employed by the Charging Party Union, testified that following the election, he continued to meet with employees, including Lawler He also testified that until November 1982 he continued to make contact with Lawler by telephone or visitation However, he could not recall what was discussed on those occasions Indeed, on cross-examina- tion; Perry testified the campaign ended on the day of the election Lawler confirmed that his direct contacts with Perry ended when the latter moved from the area a few weeks after the election The testimony as to the postelection involvement with the Union is not only vague, but there is no basis for whatever for inferring that employer representatives were aware of it Also noteworthy is another uncorroborated assertion on the part of Lawler that following the election, he told employees that a pay cut would not have emerged if the Union had gotten in Testimony as to the frequency of these expressions was exacted through prejudicial- ly leading examination on the part of the General Counsel In any event Lawler was not regarded as a trustworthy witness, and if he made this point to coworkers. I am unwilling to find that he did so on an other than Isolated basis There clearly is no evidence that any such comment was made within earshot of any representative of Respondent Here again, there is no basis for inferring that Respondent was aware of any union activity on the part of Lawler at times proximate to his discharge 7 Apart from the instant proceeding, there does not appear to be an unfair labor practice history at Respondent's plant As shall be seen Infra, the independent 8(a)(1) allegations herein have been deemed nonmeritor- ious IRVING TANNING CO 9 declining to work or call in on Monday, November 22, 1982.8 To overcome these shortcomings, the General Counsel attacks the credibility of certain testimony underlying the defense, while claiming that pretext is indicated by evi- dence that Respondent applied its attendance policy dis- parately This effort at impeachment is made possible by the fact that Respondent's case against Lawler extended beyond his November 22 absence. Thus, Supervisor Os- borne and Personnel Director Hikel insist that Lawler, in addition to the Monday absence, also failed to report for work or call in on Tuesday, November 23. As their mu-' tually corroborative account goes, Osborne reported the absence to Hikel on Monday, who in turn told him to' issue a warning if Lawler showed up on Tuesday, but if he neither appeared nor called on Tuesday to discharge him. On Tuesday afternoon when Lawler neither report- ed nor called, after again consulting with Hikel, Osborne asserts that he pulled his card. Osborne claims that he in-' formed Lawler of the discharge when he finally reported on Wednesday morning Thus, Respondent's witnesses are emphatic in their as- sertion that Lawler was terminated on Wednesday, No- vember 24, after having failed to report for work on both Monday, November 22, and Tuesday, November 23, while Lawler insists that he reported for work prior to his shift on Tuesday, November 23, only to find that he had been terminated. Despite my misgivings concern- ing the truthfulness of Lawler, in this instance, persua- sive evidence tends strongly to confirm that he was absent only on Monday, November 22. Thus, it is documented fact that Lawler on December 6, 1982, within 3 weeks of his termination, filed an unem- ployment claim. His report, in support thereof, made to Robin Scanlin, a claims deputy with the Maine Bureau of Employment Security, in material part, was summarized by the latter, as follows "I was absent on Monday 11/22 . . . I went in Tuesday and my card was pulled "9 Scanlin further testified that, although she had no inde- pendent recollection of the transactions, it would have been her standard procedure to call the Company and speak to the person in charge of the personnel depart- ment. She would "usually tell . . what the claimant has. told her," ask for a response, and clarification of any- thing vague in the claimant's statement. Scanlin related that she would then prepare a written summary of the personnel director's statement In evidence is her summa- ry , of Hikers response, prepared in connection with Lawler's claim, which in material part, is set forth below . "He was laid off & recalled 11/15/82. He worked 8 Respondent's employee handbook (G C Exh 2. p 8) recites as fol- lows You are expected to be on the job everyday for which you have been scheduled to work When you are unable to report for 'work for any reason, it is your responsibility to notify your foreman or the main office at least 2 hours after the start of the first shift and one hour before the start of the second and third shift 9 See G C Exh 8(b) This representation was affirmed by signature of Lawler on a form which bore the admonition "I Realize That The Law Provides Penalties For Willful Misrepresentation Of Fact five days and was absent 11/22 and did not call in He was discharged for continuing record of absences "10 Scanlin next testified that on the basis of the informa- tion collected, she would prepare a written determina- tion as to whether or not the claim is allowed That pre- pared in the case of Lawler disqaulified him for benefits, reciting in material part as follows. You were laid off in October and recalled in No- vember. You worked 5 days and then you were absent 1 day and did not notify the employer. You were discharged for absenteeism and for failing to notify the employer." Respondent argued strenuously that the documents prepared by Scanlin in processing Lawler's unemploy- ment claim and their content were improperly received and should have been excluded as incompetent hearsay Upon further consideration, there is no merit in this claim In accordance with Section 10(b) of the Act, the "Rules of Evidence applicable in the District Courts of the United States . . . ." are the preferred reference point in resolving such issues as they arise in unfair labor practice proceedings._ Rule 803(8) of the Federal Rules of Evidence recognizes an exception to the hearsay rule with respect to "Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth matters observed pursuant to duty im- posed by law as to which matters there was a duty to report . . " The. documents prepared by Scanlin were well within the scope of Section 803(8) and Respondent's objection goes more to the weight, than the admissibility Accordingly, the ruling fostering receipt of these docu- ments made at the hearing is reaffirmed.12 Respondent also seeks to discredit the substantive con- tent of these documents on a number of grounds, chal- lenging specifically the intimation that at the time of the unemployment filing there was no claim that Lawler was absent on Tuesday, November 23. In weighing the import of this documentation it is first noted that the tes- timony of Osborne and Hikel that Lawler was absent that day is unsubstantiated by any form of business record 13 On the other hand, payroll records tend to un- 1 ° See G C Exh 8(a) " See G C Exh 8(e) 2 Contrary to Respondent, Heal v Maine EmployMent Security Com- mission, 447 A 2d 1223 (Me Sup Ct , 1982), warrants no different result Unlike the raw, unsworn, unverified statements Involved there, which were unidentified as to how they were prepared, and relied on without benefit of the author's testimony, the sworn accounting by Claim Deputy Scanlin as to her standard operating procedure and as to how she com- piled G C Exhs 8(a). (b). and (c) does in fact "supply assurances of reliability," and is properly described as the "kind of evidence upon which reasonable persons are accustomed to rely in the conduct of seri- ous affairs " See Me Rev Stat Ann (1979) § 905(2), 447 A 2d at p 1226 " Respondent in its posthearing brief suggests that the timecard of Lawler in evidence as R Exi) 1 is objective documentation corrobora- tive of Osborne and Hikel I cannot agree Upon examination of the time- card, the handwritten entry under Tuesday, November 23, of "NC," 'al- though normally the entry used to signify a failure to "call in," does not constitute reliable, objective proof that Lawler was absent that day Apart from the fact that Respondent made no effort to identify when the entry was made or by whose hand, it is also a fact that the authenticity of Continued 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dermine Respondent's position in this respect One would think that caution would have been exercised in main- taining accuracy of entries pertinent to the discharge of a known union protagonist. The document in question, General Counsel Exhibit 5, includes the familiar "NC," signifying "absent without calling in," on November 22, but does not duplicate that notation under November 23. Instead that document under November 23 simply states "ALL DONE" There is no suggestion that this docu- ment was shown to Lawler at any time Nonetheless, the entries, which according to .Personnel Manager Hikel would have been his work," are entirely symmetrical with Lawler's consistently maintained position that he was absent on November 22 and informed of his termina- tion when he reported in on November 23. Respondent's assault against the content of the afore- described documents continued with rebuttal testimony by Hikel who swore • to specific recollection of a tele- phonic conversation with Scanlin about December 9, 1982 He testified that when Scanlin inquired of the cir- cumstances surrounding the Lawler discharge, including previous absences, .Hikel informed her "the absence was one day with no call and then a second day we waited until late in the afternoon before we decided to terminate him because we had not received another call" Hike' re- lated that he could '"clearly remember" that Scanlin went on to state- "well, it doesn't make any difference, one day is enough." His recall of that conversation was admittedly independent, - as he made no notes, nor did he have any other basis for refreshing his recollection as what transpired Contrdry to Hikel, it is considered un- likely that Scanlin would have overlooked an absence on November 23. had it been reported She disqualified Lawler for benefits. That determination was reviewable. I would Place greater stock in the probability that a public official in denying an unemployment claim would explore and report every fact tending to support that de- termination, than the somewhat self-serving testimony of Hikel I am convinced that the November 23 absence went unnoticed in Scanlin'S reports for the same reason that it was not denoted in General Counsel's Exhibit 5, namely, she was never informed thereof, as the absence never occurred. Based on the confirmation appearing in the reports prepared by an official representative of the State Unem- ployment Insurance Agency,' 5 and the timing of that compilation in relation to the discharge, together with the fact that Respondent's own business records tend to support Lawler's view of the facts, the latter's testimony is accepted over that of Osborne and Hikel that notatiomis of no greater reliability than the truthfulness of the parol testimony of Supervisor Osborne. through whom that document was of- fered Thus. R Exh I. at best, presents a collateral question of credibil- ity It does not stand as an objective factor influencing resolution of the basic conflict in testimony " It is noted that the "NC" entries on R Exh 1 appear to be by the same hand as that inscribed on G C Exh ' 5 . 15 The Public Records exception is based on the assumption that a public official in the course of his duties will record facts accurately in the proper performance of his duties See, e g , Wong Wing Foo v McGrath. 196 F 2d 120 (9th Cu- 1952), and Chesapeake & Delaware Canal Co v Us, 250 li S 123 (1919) Unquestionably, the breakdown in the credibility of Osborne and Hikel strengthens the General Counsel's claim of discrimination However, the pretext issue must be evaluated in the light of other factors, and while' the issue is not free from doubt, this discrepancy in light of the overall rcord is not deemed sufficient to' support a fair inference that Respondent resorted to a pretexual discharge 16 On balance, the credible evidence herein merely indicates that a known union adherent was termi- nated for admitted violation of company policy Just why Lawler would have been singled out from any number of known union supporters is left to imagination. The timing of the termination was not Inherently suspect, nor was ‘there evidence of any conduct on' Respondent's part suggesting a proclivity to engage in reprisals against union adherents. Nor is the claim of discrimination aided by convincing showing that Lawler was a victim of dis- parate application of Respondent's attendance -policy 17 In short, the claim of discrimination has not been carried beyond the speculative, and on the totality of the ,record, the General Counsel has not established by a preponder- ance of the evidence that Lawler was discharged • on No- vember 23, 1982, in violation of Section 8(a)(3) and (1) of the Act. b. The discharge of Russell Stackhouse Stackhouse began his most recent employment with Respondent on May 12, 1980 He was discharged on the assigned ground that he was absent on March 30, 1983, without calling in as required by Respondent's policy. At the time of his discharge, Stackhouse's immediate supervisor was Richard Emery Stackhouse was.assigned to the 'second shift, with work hours of 3 to 11 p.m It will be recalled that under Respondent's published at- tendance policy, second-shift personnel are required to call in their absence at least 2 hours prior to the com- mencement of their shift 16 I do not subscribe to the notion that the oath should be enforced through a process whereby the offender is automatically penalized by ad- verse ruling on the merits Cf Shattuck Denn Mining Corp v NLRB. 362 F 2d 466, 470 (9th Cir 1966) Although a testimonial breakdown will always arouse suspicion. it might not be dispositive where the surround- ing circumstances suggest innocence There are a- number of explanations for false testimony other than guilt Exaggeration, entailing a disregard of the oath might well be a function of Innocently confused perception or relentless desire to win, rather than an admission that one's legal positibn is unfounded All of us have encountered those who would he themseh%es to trouble even whenthe truth would absolve Neither side in this case can claim Innocence on this score Lawler's false assertion as to the "troublemaker" comment, if believed, would have provided "smoking gun" evidence of discriminatory Intent It was' no less reprehensible than Respondent's false effort to remove ambiguity and strengthen its defense to unassailable dimensions, for as Hikel was to explain eslewhere "I don't recall ever having a person out two consecutive days. no call, and still is working and was not terminated as a result " i7 number of Respondent's employees had been discharged since 1981 for absenteeism Testimony of Hikel persuades that there is no con- sistency in the manner in which attendance is enforced He offers the en- tirely credible explanation that supervisors are afforded latitude in this area, and discipline will vary with the needs of individual supervisors, their attitude and their separate evaluation of -a number of factors reflect- ing on the individual employee's -performance 'In these circumstances, contrary to the General Counsel, no firm conclusion can be drawn from raw attendance data of other employees. for It would be unreasonableto conclude that an' were situated identically to Lawler • IRVING. ; TANNING CO Emery admitted, that he received , Stackhouse's message through Robert Richards, but according to Emery, his ricords'revear that it was received at 4:45 p.in., after the - It appears that on Monday,. March 28, 1983, Stack- house's wife, also an _employee of Respondent, was in- jured on'the job. On Tuesday, -March 29, Stackhonse did not go to work. However, he called the plant about 2 p.m, speaking to Ron Tasker, an acknowledged supervi- sor, reporting that his wife was in severe pain, that he would have to stay home with her to take care of the children, and that she had an appointment the next day to see a specialist. Tasker indicated that he would report the matter to Emery as soon as the latter arrived. Stack- house testified that he believed that he-informed Tasker that he intended to report on Wednesday; March 30. On Wednesday, March 30, the scheduled medical ap- pointment was canceled. According to Stackhouse, having apparently made up his mind not to work that day, he twice unsuccessfully attempted to reach Supervi- sor Emery at his home. He later called the plant, at- tempting to reach Emery but hung up before Emery could be summoned to the phone 18 For unknown rea- sons, he did not immediately recall the plant, but drove his wife to seek emergency room treatment at a hospital in Waterville, Maine, some 28 miles from his home. It was not until 4:15 or 4 30 that afternoon that he again attempted to contact the plant. Stackhouse left a message with coworker Bob Richards, informing him, "Well look, I've got to take Becky to the hospital right away." When Richards inquired as to the problem, Stackhouse replied "she had hurt her back and was in a lot of pain and I had to get her to a doctor right away." Richards indicated that he would give the message to Emery as soon as he arrived. On Thursday, March 31, Stackhouse, prior to the commencement of his shift, called in seeking information as to whether there would be work the next day, which was "Good Friday" He was at that time informed by Emery that he had been fired for failing to call in the previous evening. Stackhouse claims to have thereafter discussed the matter with Hikel and to have appealed again to Emery Thereafter he met with Hikel who re- sponded to Stackhouse's pleas and explanations, stating. "Well, you should have taken more steps to protect your job." To this, Stackhouse responded "Well . I was more worried about my wife than I was anything else" The discharge was allowed to stand. Emery testified that it was he who recommended the termination of Stackhouse. He claims to have warned Stackhouse twice in 1983 concerning his excessive absen- teeism." Emery added that on March 30 he arrived to find that Stackhouse did not show up and there was no call. He claims to have decided, after talking with Hikel, that if Stackhouse failed to show up by 3 30 a.m., his card would be pulled and he would be discharged 28 i8 testified that while waiting for Emery to come to the phone, his daughter started to head for the street. and that in order to stop her, he hung up 19 Stackhouse could not recall any such warnings 1 regarded Emery on this point as the more credible witness 20 Stackhouse had no telephone in his home He lived a quarter of a mile distant from his mother-in-law Catherine Munn The latter, as a wit- ness for the General Counsel, confirmed that Emery called her approxi- mately a half hour after the scheduled start of Stack house's shift on March 30, Indicating that It was unnecessary that she make 'a special -termination. StackhOuse, with confi-rmation from-Union -Representa- tive Robert Perry, described -hig effoirt on behalf of the _Union as' extensive. 'TheY allegedly gicruded dis-tribution •1. of union",literature at a.plant gate' on one occasion, and his having solicited :execution of a union authorization card from the son of his supervisor. Although Stack- -J.house.might Avell.have had union leanings, it was my im- pression that the testimony defining his activity on the part of the Union was highly exaggerated and I am dot persuaded that his sentiment in this respect was ever pur- sued in a manner likely to come to the attention of man- agement Emery and Hikel both denied they regarded Stack- house as a prounion employee, claiming that they learned of his alleged union activity only in the course of the instant unfair labor practice hearing Certain action on the part of management shortly after the May 1982 election lends convincing support to their testimony Thus, Respondent's Exhibit 2 was identified by Hikel as a list of 37 employees known by Respondent to be active on behalf of the Union That list was furnished the NLRB on June 17, 1982, and was used in this proceeding by the General Counsel in examining witnesses. Al- though, by its nature, that list would have served Re- spondent's interests if maintained in the most comprehen- sive form attainable, Stackhouse was not listed. On bal- ance, it is concluded that there is neither direct nor cred- ible evidence warranting a reasonable inference that management knew or suspected that _Stackhouse was a prounion employee Accordingly, in connection with the termination of Stackhouse, the General Counsel has failed to make a prima facie showing that union activity was to any extent a contributing factor to the discipline imposed. The 8(a)(3) and (1) allegation in his case shall be dismissed trip" but that if Stackhouse came over, to have him call Emery Emery confirmed that he made this effort to reach Stackhouse " In his testimony, Stackhouse asserts that Emery denied that the dis- charge decision was his own However, the testimony in this respect was not entirely consistent Stackhouse first related that Emery did not identi- fy who It was that had Instructed him to effect the termination, but that Emery simply stated that it was -the office" Later he testified that Emery expressed disagreement with the discharge, adding that the dis- charge decision was "out of his hands." stating that It was in the hands of Hike! He also testified that the next day in a further conversation with Emery, Emery allegedly told him that he had to let him go, that there was nothing he could do, and that Hike! wanted him terminated Bob Richards tended to corroborate Stackhouse He testified that after he re- layed the message to Emery, the latter responded, "It was a good thing he [Stackhouse] called, because they wanted me to pull his card " Emery credibly denied such a statement The testimony of Emery that he made the decision Is the more probable For. It is unlikely that Hike] would have had information as to the absence were It not for Emery's having initiated the action resulting in the discharge Contrary to Stackhouse. It is difficult to believe that Emery would have taken this step if he did not himself contemplate discipline I believe that the discharge at the least was recommended by him, and that he at no time denied responsibility for that action or expressed disagreement with It 12 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD CONCLUSIONS OF LAW • 1. Respondent is an ,employer engaged in cofrimerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent did not commit the independent 8(a)(1) violations set forth in the complaint. 3. Respondent did not violate Section 8(a)(3) and (1) of the Act on November 23, 1982, by discharging Keith Lawler and on March 31, 1983, by discharging Russell Stackhouse. On these findings of fact and 'conclusions of law And on the entire record, I issue the following recoinmend- ed22' ORDER The complaint is dismissed in its entirety. 22 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall . be deemed waived for all pur- poses