Davis Walker Steel & Wire Corp.

DAVIS WALKER STEEL & WIRE CORP. Davis Walker Steel & Wire Corporation and Tom Carter. Case 26-CA-8200 September 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 14, 1980, Administrative Law Judge Robert M. Schwarzbart issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. The Respondent filed limited cross-exceptions and a brief in support thereof and in answer to the General Counsel'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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Administrative Law 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 resolutions are incorrect. Standard Dry Wall Pmducas, Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: This case was heard in Memphis, Tennessee, on April 22 and 23, 1980, on a complaint issued January 28, 1980, based on a charge filed on December 17, 1979, by Tom Carter, an individual. The complaint alleges that Davis Walker Steel & Wire Corporation, herein the Re- spondent, violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by discharging Carter because of his support for Highway and Local Motor Freight Employees Local 667, affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and its sister union, Local No. I All dates hereinafter are within 1979 unless stated otherwise. 252 NLRB No. 52 1196, herein jointly called the Union. The Respondent, in its answer, denies the commission of unfair labor prac- tices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, filed by the General Counsel and the Respondent, have been carefully considered. Upon the entire record in the case and my observation of the witnesses, I make the following: FINDINGS OF FACT i. THE BUSINESS OF THE RESPONDENT The Respondent, a corporation with facilities in var- ious States of the United States, including an office and place of business in Memphis, Tennessee, is engaged in the manufacture and nonretail sale and distribution of steel wire and steel wire products. Annually, the Re- spondent, in the course and conduct of its business oper- ations, sells and ships from its Memphis facility, prod- ucts, goods and materials valued in excess of $50,000, di- rectly to points outside the State of Tennessee. The Re- spondent also annually, in the course and conduct of its business operations, purchases and receives at its Mem- phis facility, goods and materials valued in excess of $50,000, directly from points outside the State of Tennes- see. In accordance with the foregoing conceded facts, I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The above-named Unions are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. Ill1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent, with approximately 13 plants, is en- gaged at its facility in Memphis, Tennessee, in the manu- facture of chain link fence and concrete reinforcing mesh. The Respondent's Memphis plant, which is under the general supervision of John Kafka, general manager, and the only facility involved herein, is comparatively new. The Plant manager, Russ Brasher, arrived there during the last week in January to help establish the plant, the first equipment was installed in the first week of February and the first shipment was made from the plant in March. Accordingly, while approximately 60 to 65 persons were employed at the plant at the time of the hearing, there were only about 15 to 20 employees there in the summer of 1979, when most of the events to be considered herein occurred. 311 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Facts 1. The discharge of Tom Carter The General Counsel contends that the Respondent on July 23 unlawfully discharged Tom Carter,2 a shipping helper, because he had signed an authorization card for the Union. Tne Respondent, while conceding knowledge that Carter had signed a card for the Union at the time of discharge asserts that Carter was terminated solely for his excessive absenteeism and tardiness. Plant Manager Brasher, originally called as an adverse witness by the General Counsel, testified that he first learned of the Union's organizational campaign among its employees on July 19, when a machine operator, one of the first individuals to be employed at the plant, came to his office and announced that he wanted to resign as he did not want to work where there was a union. This em- ployee then told Brasher that six employees had signed union cards, identifying by naming Carter and five other employees as the card signers. Brasher sent the employ- ees back to work, telling them not to worry, the Union was not in the plant. Brasher testified that he had decided to discharge Carter on the recommendation of Shipping Foreman Ted Holiday, Carter's immediate supervisor. s Starting in July, after Carter had been employed for about 6 weeks, Holiday had spoken to Brasher negatively about Carter's work performance, his absenteeism, and tardiness on three or four occasions. When Carter first became a topic, Brasher had suggested that Holiday talk to Carter and try to help him. However, on Friday, July 20, Holi- day recommended that Carter be discharged. On July 20, Holiday told Brasher that Carter had punched in 10 minutes late, and had thereafter clocked out, leaving the building. He later returned, worked for a short period, and left again for the rest of the day. Holi- day declared that Carter was no good, was not there, and that he needed someone on whom he could rely. After Brasher and Holiday reviewed Carter's record showing his attendance and punctuality, Brasher told Holiday that he knew what he wanted to do. When Holiday said that he wanted to discharge Carter, Brasher gave his approval. Carter was terminated on Monday, July 23, the next workday. Holiday, also later terminated by the Respondent, ap- peared as the General Counsel's principal witness. He testified that on about March 1, before becoming em- ployed by the Respondent, he had visited Brasher's office on behalf of his employer at the time, a security concern, to discuss providing services for the Respond- ent's new plant. Holiday recalled having told Brasher that if his Company supplied guards for the Respondent's new complex, and if a union thereafter should come in and strike, his company had a special strike rate that was higher than the normal guard rate. Brasher had replied that he did not think that there would be that problem; they were not going to have any unions "out there." Brasher then spoke of certain union problems experi- Carter, hired by the Respondent on May 23, just 2 months before being discharged, did not testify at the hearing. I Although Holiday was a supervisor within the meaning of Sec. 2( 1) of the Act, only Brasher could authorize discharge. enced at a former place of employment in Birmingham and declared that the Memphis plant was not going to have those types of problems. Holiday testified that he first had learned of the Union's organizational campaign from Mike Harrell, a shipping employee. 4 When Holiday reported to Brasher that a union was meeting with employees at lunchtime, Brasher replied that, as he had told Holiday before, there were not going to be any union problems at the plant. He said that the Union could organize all it wanted and that if he had to fire every "son-of-a-bitch" out there and start over again with a new crew, they would not have a union. In July, approximately 2 weeks before discharging Carter, Holiday attended a meeting with Riley Savage6 and Brasher, in Brasher's office. Holiday again had re- ceived word from Harrell that some union cards had been signed during the lunchbreaks. When he repeated this to Brasher in Savage's presence, Brasher told him that he already had heard. Brasher then asked if Holiday knew that "his boy" had signed a card. When Holiday asked what was meant by "his boy," Brasher retorted that he knew who he was talking about, Tommy Carter. Holiday answered that he had not heard that. All he had heard was that some signing had been going on, but not who had signed the cards. Holiday asked what Brasher would like him to do about this. Brasher told him that he knew what to do about it. Holiday stated that he knew what Brasher had said in the past, but again asked what Brasher wanted done. Brasher then announced that he wanted Holiday to fire the "son of a bitch," to make one example of him so that there would not be any more problems. However, he cautioned Holiday to find a le- gitimate reason for getting rid of Carter; to make it look legitimate. When Holiday asked if he also was supposed to take care of the other people who had signed cards, Brasher replied in the negative; their own supervisors would handle them. Holiday related that, earlier before the above session with Brasher, Carter had had personal problems at home affecting his attendance and punctuality, and that he had 4 Although Harrell worked under Holiday, the two men had a broth- erly relationship, Harrell having been raised in Holiday's home. This con- nection is relevant in a different context, to be discussed below. In the summer of 1979, Holiday and Harrell shared a residence. I Brasher denied having told this to Holiday. He did recall telling Holiday at their meeting before Holiday had come to work for the Re- spondent, that he did not think that there would be a union because he knew what causes unions and thought he knew how to keep them out- by treating the employees right. He denied ever having threatened to fire anyone to defeat the Union. s Savage was supervisor of the chain link division, first shift. The first shift, on which Holiday and Carter also had worked, generally was scheduled from 7 a.m. to 3 p.m. Occasionally, overtime would be worked on this shift, starting at 6 a.m. ? Brasher, asserting that he did not learn until July 19 that Carter and the others had signed union cards, denied that the conference with Holi- day and Savage, described by Holiday as having occurred in late June or the beginning of July, had taken place. Contrary to the General Counsel, I find that Brasher denied the event as well as the date. The General Counsel's contention that the Respondent's failure to call Savage, one of its supervisors who had appeared as a rebuttal witness for the Respond- ent on another matter, to also testify concerning this conference warrants the drawing of an adverse inference against the Respondent, will be con- sidered below. 312 DAVIS WALKER STEEL & WIRE CORP. spoken to Carter in an effort to help. However, on July 20, his last day of work for the Respondent, Carter punched in late. He subsequently went to Holiday and announced that he had been ill and wanted to go to the doctor. Holiday gave his consent after reminding Carter to bring back a doctor's note. However, when Carter did come back, Holiday was busy and never asked for the physician's note. A short while after Carter had punched in and resumed work, he again went to Holiday and said that he had to go home. Carter then left for the day. On Monday, July 23, the next regular workday, al- though expected to report at 7 a.m., Carter did not come in and was not heard from until he telephoned Holiday at around noontime. When Carter identified himself on the phone, Holiday told him that he had been expecting something from him. Carter stated that he guessed that he did not have a job anymore after that morning. Holi- day said that he was right, he did not. Holiday rejected Carter's offer to come in and talk to him stating that he would be too busy to discuss anything with him that day. If Carter wanted to talk to Brasher, that, of course, was his prerogative. He could arrange to pick up his check later in the day and to talk to Brasher then. Cart- er's discharge was completely out of Holiday's hands. Accordingly, Carter was terminated. As will be detailed below, on September 27, Holiday, too, was discharged. On or about December 1, Holiday and Carter met by chance at a grocery store. During their conversation, Holiday told Carter that he, also, had been fired by the Respondent and that the Company had discharged Carter because he had signed a union card. The record reveals that in the exactly 2 months Carter worked for the Respondent from May 23 to July 23,8 he was absent from work for 4 complete days, was away during parts of 3 other days and was late 13 times. The Respondent, however, contends these occurrences were heavily concentrated in Carter's second month of em- ployment, following the end of his 30-day probationary period. Accordingly, 3 of Carter's 4 days of total absence came after the end of his probationary period. Also, while in Carter's first 30 days he was late only three times, twice by I minute and once by 2 minutes, in the second month, he was late 10 times. Four of these laten- esses were for periods of 19 minutes or less, while the remaining incidents ranged for periods of from 1-1/4 hours to 5 hours and 43 minutes. Three of the latenesses in this catergory were for close to or substantially above 2 hours. Of the three instances of partial absence, when Carter did not work his entire shift, he was away from work for two periods of 2 hours and 30 minutes, respec- tively, during probation, while on July 20, he missed 6 hours and 45 minutes under circumstances described above. In August or September, following Carter's termina- tion, the Respondent issued its handbook of policies and practices for hourly employees, a collection of work rules since issued to all employees. There, the Respond- ent codified a system of progressive discipline providing for suspension or discharge following receipt by an em- " The first 30 days of employment are a probationary period ployee of three written warnings within a 3-month period or one written warning on the same subject matter within 1 year of a final warning. The handbook also provides penalties for tardiness and for unexcused and excessive absenteeism, the latter defined as frequent or prolonged periods of absence from work, regardless of whether properly reported. Brasher testified that under the policies established since issuance of the hand- book, employees are likely to undergo disciplinary sus- pension before discharge is considered. Brasher explained that before issuance of the hand- book, no written workrules were in effect nor was there a practice concerning the use of written warnings, even as prerequisite to more severe discipline. Accordingly, in this early period in the plant's operation, new supervisors were instructed to orally warn employees for infractions, precise standards as to when disciplinary action might become applicable for absenteeism or lateness did not exist. It was a matter of judgment left to the individual supervisors. Employees might be cautioned for taking too many long weekends or for other types of patterned absences, whether or not excused. Factors considered in- cluded the repetitiveness of the absences and latenesses and the reasons given therefore. The standards applica- ble, to the extent determinable, were predicated on Brasher's prior experience, and, admittedly, were then vague and unevenly applied. While supervisors always were required t obtain Brasher's consent before dis- charging an employee, they could independently decide when to give oral warnings.9 The record establishes that Carter had been spoken to by Holiday on several occa- sions with regard to his absenteeism and lateness. Although Brasher conceded than Carter was the first employee at the Memphis plant to he discharged for ab- senteeism and tardiness, the General Counsel, to show disparate treatment, introduced summaries of the attend- ance and tardiness records of 13 other employees who also were terminated after Carter's discharge for frequent absenteeism and lateness. While the General Counsel argues that these others had been more tolerantly treated than had Carter as most of these later discharged em- ployees had had poorer attendance and punctuality, it is noted that two of these others had had less severe re- cords than Carter. 2. The discharge of Ted Holiday The Respondent contends that Holiday, the General Counsel's principal witness, was a disgruntled terminated supervisor who had been let go for various reasons, in- cluding some that would affect his credibility, and that his testimony in this matter was but part of a continuing campaign to embarrass Brasher and General Manager Kafka, whom he held responsible for his termination. As a determintion of Holiday's credibility is obviously cru- cial to a finding herein concerning Carter, it will be nec- essary to explore the circumstances of Holiday's depar- ture from the Company and his conduct thereafter. Holiday testified that on September 27, the day of his discharge, Brasher called him into the office and told 9 Brasher, himself, did not issue any oral warnings. 313 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him that he should not have leased a certain rented trac- tor without first checking with him. Holiday explained that he had leased the tractor to make a delivery because he did not believe that the Company's regular rig would be back in time. He had thought that Brasher would be more concerned about the shipment reaching its destina- tion on schedule than about the money. If money was that big an obstacle, Holiday offered to have the cost of the leased rig deducted from his paycheck. If he had made a mistake, he would be glad to pay for it. Brasher told Holiday that that would not be necessary. Brasher then walked into the plant area, followed by Holiday. Shortly thereafter, Holiday saw Brasher talking to an employee about punctuality. As Holiday ap- proached, the employee turned from Brasher and began to explain himself to Holiday. This attention shift by the employee seemed to aggravate Brasher, who declared that he and the employee would discuss this matter later. He then sent the employee back to work and told Holi- day to come back to the office with him. As the two men entered the office, Brasher told Holi- day that he was afraid that he would have to ask for his resignation. When Holiday asked if Brasher were joking, Brasher assured Holiday that he was not and was asking for his resignation. When asked for the reasons, Brasher replied that there had been discrepancies in Mike Har- rell's timecards, where Holiday had punched out for him. Holiday denied this, stating that he did not know what the timecards showed, but there was no way that he would falsify company documents. Moreover, it par- ticularly was impossible that he would do such a thing with respect to Mike Harrell's cards because he and Har- rell rode to and from work together each day in Holi- day's car and Holiday knew exactly when Harrell ar- rived for and left for work each day. In addition, as he and Harrell were so close, Holiday knew exactly when Harrell arrived for and left for work each day. In addi- tion, as he and Harrell were so close, Holiday knew that he would be the first to be suspected on any improper attempt to benefit Harrell. Brasher then stated that Holi- day did not have sufficient control over the employees. He was just a little too friendly with them. Brasher re- peated that he was going to have to ask for Holiday's resignation. This interview, as described by Holiday, ended his employment with the Respondent. Holiday related that in early October he called Dennis Gates, the Respondent's comptroller and assistant trea- surer, °0 at Gates' Houston office. He knew Gates slight- ly having met him briefly during Gates' several visits to the Memphis plant in the spring and summer of that year. When Gates acknowledged that he remembered Holiday, Holiday announced that he was concerned about a situation that had developed in the plant, which he hoped Gates could clarify and, in so doing, perhaps could help Holiday get back his job. When Gates asked what had happened, Holiday told him that he had been fired. Gates expressed regret. Holiday told Gates that l' Gates, who is responsible for the Respondent's accounting systems, banking relations, and the general safeguarding of the Respondent's assets., is based at the Respondent's home office in Houston, Texas. He reports to the vice president and treasurer of the Respondent's parent corporation in Los Angeles, California. Brasher had given him instructions on Friday, August 31, that anything shipped from the plant on the follow- ing Monday afternoon was to be documented as having been sent out on August 31, rather than in September. Brasher repeated that he wanted Holiday to ship the first September load backdated to August 31, rather than as of the appropriate September date to improve the August report, explaining that the plant was still in the red, the books were looking bad, and the homeoffice was screaming. Also, inventory records were being kept im- properly as, at the end of each month, goods were being treated as sold and billable as soon as loaded onto trucks even though they were not delivered until the start of the following month. Holiday told Gates that the plant was doing the same thing every month. Holiday also told Gates that Brasher had informed him that General Manager Kafka wanted him to get reject material, generated in production, onto a truck and out of the plant before an upcoming visit by the Respond- ent's board chairman and president. Holiday had been in- structed to drive the reject material to the concern where the Respondent leases its trailers and to hide the material in their parking lot so that the plant would look better and the chairman would not be upset by the amount of waste material. Holiday told Gates that he would not want people en- gaged in such deceitful practices working for him and that he wanted to call the board chairman personally in California and tell him what was going on. Once the chairman heard what he had to say, maybe he would give him his job back. Gates told Holiday to let him in- vestigate first, promising to call back with his findings. As Gates recalled this initial telephone conversation with Holiday in early October, Holiday, after the pre- liminaries, had told him that there were some practices going on in the plant that he felt were dishonest and de- ceitful. Inventory was being taken at the end of each month incorrectly in that the Memphis plant was treating goods put on trailers at the end of each month as sold and, therefore, not counted in inventory. Also, a truck- load of reject material had been removed to artificially improve the appearance of the plant during a visit there by the chairman of the board and the president. Holiday stated that he also felt it necessary to contact someone higher in the Respondent's organization, even if it meant going to the chairman. Gates told Holiday that he appreciated his call and wanted the opportunity to investigate the two charges as he ultimately is responsible for these areas. He promised to get back to Holiday with the results of his inquiry. Gates related that he thereafter did check out Holi- day's charges. He explained that there had been no im- propriety in the Memphis plant's practice of taking goods from inventory and treating them as billed once loaded onto trucks as nothing was loaded until sold. The Respondent ships directly to its customers rather than to warehouses and this bookkeeping practice, used at all of I' Gates, unlike Holiday, did not testify that he had been told during that conversation that Brasher and Kafka were backdating shipping papers so as to appear that the relevant loads had gone out during the preceding month. 314 DAVIS WALKER STEEL & WIRE CORP. the Respondent's plants, reduces confusion in the flow of paperwork. About 7 to 10 days after their first conversation in this regard, Gates, as promised, called Holiday. At that time, Gates told Holiday that he had not yet had the opportu- nity to complete his investigation of Holiday's two points and that he would try to get back to him on these as soon as possible. However, Gates did ask if Holiday had spoken with Kafka or Brasher to try to resolve their dif- ficulties. Holiday replied that it was too late for that with Brasher and that he did not believe that it would do any good to discuss the matter with Kafka. Within the week that followed, Gates having complet- ed his inquiry, again called Holiday and explained that there had been nothing improper in the inventory-taking method used in the Memphis plant. The practice de- scribed was used by the Company uniformly at all of its plants. Secondly, Gates told Holiday that while he did not appreciate that a truckload of reject material had been moved from the plant during the chairman's visit for the sake of appearences,' 2 it had been necessary to determine the actual weight of the load and this had been done at that time. 3 Brasher testified that Holiday had insubordinately dis- regarded his instruction that any expenditure in excess of $100 be approved in advance by him. This especially re- lated to any truck or trailer rentals or leases, an area where the Company had been having difficulties. While Brasher had been working late during the night before Holiday's termination, a driver had come in with an ad- ditional leased truck although there were at least two brand new trucks already on lease, for which the Re- spondent then was paying without regard as to whether they were being used. Holiday's leasing of another vehi- cle while other trucks were on lease, in disregard of his instruction to first obtain clearance, had directly precipi- tated his discharge. However, Brasher expressed his dissatisfaction with Holiday for a variety of other reasons, as well, and that these had caused him to decide in late June or early July to seek a replacement for Holiday. Such an eventual re- placement had been on the payroll since mid-July. Brasher contended that Holiday had been lax in the per- formance of his duties, had been unable to get along with an inside salesman who had to work with Holiday, as shipping foreman, to ensure that loads were timely dis- patched, and had been unable to get along with employ- ees assigned from other departments to help when there were many trucks to load and dispatch. Brasher also ex- pressed irritation that Holiday, who had been hired to oversee the shipping department, had asked to be al- lowed to drive a truckload to Mobile, Alabama, so that he might be positioned to take a side trip to visit his mother in Pensacola, Florida. The foremost reason for the action taken against Holiday, however, was based on 12 Gates conceded that Holiday's charge that the truckload of reject material had been removed to make the plant look better during the visit of the Respondent's chief executive was half justified. However, as the reject material still was valued for its raw steel content, its weight was needed and taken while away from the plant. Is Holiday denied having been told by Gates that the load of reject material had been weighed, and testified from his own knowledge. Brasher's belief that Holiday as Mike Harrell's supervi- sor, had been falsifying Harrell's timecards because the two men were personally close. This had been men- tioned when Brasher had asked for Holiday's resignation. Brasher related that he first suspected that something was wrong with Harrell's timecards when, on Wednes- day, September 19, he saw Harrell leave the plant for the day noticeably before 7:26 p.m., the punchout time on Harrell's card for that day. This caused Brasher to pull and check cards in Holiday'a department, as supervisors are responsible for totaling the hours worked each day and week and for verifying the cards of persons assigned to them. The work hours thus computed serve as a basis for employee compensation. Brasher related that, as a result of this check, he found that there were a number of discrepancies on Harrell's cards, all of which had inured to Harrell's benefit. Spe- cifically, for the weekly pay period ending July 14, Har- rell, who had worked 6 days, apparently had punched out only three times on his own. Two additional pun- chouts had been written in and initialed by Holiday. The accuracy of those times are not disputed by Brasher. Al- though there was no punchout shown for the sixth day of that week, Harrell, nevertheless, was credited with 6 hours of work by Holiday. On Harrell's card for the pay period ending September 14, Brasher found that Harrell's hours had been miscom- puted on three of the 6 days worked by him to the effect that Harrell had put in 45-1/2 hours, rather than the 47- 1/4 hours originally credited by Holiday. For the week ending August 15, during which Harrell had worked 5 days, Holiday twice had incorrectly credited Harrell with additional time totaling 1-1/2 hours, and, for the 6- day workweek that ended on September 21, Harrell's time, because of two separate computation errors, was incorrectly totaled at 49 hours instead of the 46-1/2 hours shown by the timestamps. Brasher, during his review, recomputed Harrell's pay for the weeks ending September 14 and 21 on the basis of the timestamps and compensated Harrell accordingly for those weeks. Brasher views the fact that these payments were not pro- tested, although based on fewer hours than originally credited, to be an acknowledgment of the accuracy of his computations. In mid-September, after running the check on time- cards in Holiday's department, Brasher called Holiday to his office, showed him some of the relevant cards, and asked about the discrepancies. Holiday replied that there had been error on his part and had apologized. Brasher testified, however, that, subsequently, while working late on the dock area on the evening of Tues- day, September 25, he had seen Harrell leave work for the day at 6 p.m. and, although both men had remained much later, they did not see Harrell return. Nevertheless, Holiday had written in and initialed a punchout time of 8 p.m. for Harrell for that night, with the result that Har- rell was credited with 2 additional hours. 14 The Re- spondent argues that the discrepancies in Harrell's cards '4 Harrell's departure time on September 25 as described by Brasher was corroborated by Supervisor Riley Savage, who testified that he, too, had seen Harrell leave at 6 p.m. and not return. 315 DECISIONS OF NATIONAL LABOR RELATIONS BOARD traceable to Holiday constituted manipulation of compa- ny pay records to benefit a personal favorite, and, ac- cordingly, reflect adversely on Holiday's credibility as a witness in this proceeding.' Holiday testified that about 2 weeks before his dis- charge, Brasher had summoned him to the office and told him that there were some discrepancies on Harrell's timecards. Holiday replied that he did not see how this could be as Harrell rode to and from work with him every day and he knew the hours that Harrell worked. Holiday continued that he would not do such a thing in the first place, but if he was going to falsify a timecard for somebody, it would not be Harrell. As he and Har- rell were so close, Holiday felt that he would be the first one that Brasher would look for under such circum- stances. Holiday offered to submit to any type of testing to support his denial of intentionally falsifying any pay records. Brasher told him that this would not be neces- sary. He accepted Holiday's representation that the dis- crepancies in Harrell's timecards were an honest mistake, sending Holiday back to work with an admonition to be more careful in the future. 6 At the hearing, Holiday again denied having taken lib- erties with Harrell's timecards, testifying that there had been only one occasion during the time that Harrell had been under his supervision that he had ever left work without Harrell. ' 7 Accordingly, Holiday admitted that he had punched out Harrell's card for the disputed date of September 19 at the time shown with personal knowledge as to when Harrell had left work. As to September 25, another dis- puted date where Brasher claimed that Holiday had credited Harrell improperly for 2 hours' work after Har- rell's 6 p.m. departure time, Holiday explained that he and Harrell actually had worked to the 8 p.m. punchout time shown. He and Harrell, on the job that day since 6:30 a.m., had been waiting in Holiday's office to load an empty incoming trailer that was running late. At or around 5:45 p.m., at Holiday's suggestion to get some- thing to eat, they drove to a nearby grocery and brought back some plate lunches, which they ate in Holiday's office. The had been away for around 10 minutes, and were on hand when, around 6:45 p.m., the driver arrived with the empty trailer. They finished loading the trailer '6 Brasher explained that he did not take action with respect to irregu- larities in three timecards of two other employees who did not work under Holiday, which cards were shown to him the General Counsel, as he does not usually check through all timecards. He only had pulled the cards of employees in Holiday's department, having noticed in a particu- lar instance that Harrell had left work before the punchout time shown on his card for September 19. He had not checked the cards for the other departments. ' Holiday originally testified that before his discharge he never had received oral or written criticism from Brasher or any other member of management concerning his services. 1i The timecards for Holiday and Harrell for the pay periods ending June 30 and July 7, however, contradict Holiday's testimony that he and Harrell consistently traveled together between job and home. For the II days worked oy Harrell and the 10 days worked by Holiday in those 2 periods, the cards showed substantial differences in their starting and quitting times on all but 2 days. During the pay periods covered by these timecards, I find that the differences in their work schedules were too great to be reconciled by Holiday's partial explanations and conclude that for the great majority of those workdays Holiday and Harrell did not travel together. and left work together at 8 p.m. The next morning, while punching in, Harrell remembered that he had for- gotten to clock out before leaving the preceding night. Accordingly, Holiday accurately wrote in and initialed an 8 p.m. departure time for the preceding day on Har- rell's card. 8 Holiday admitted making certain errors in computing and totaling the hours worked by Harrell, as attributed to him, and also conceded a certain laxity in not regular- ly following the Respondent's requirement that when an employee is paid for working through the otherwise un- compensated 30-minute lunch period, the words "No lunch" should be written on the timecard by the supervi- sor when crediting the employee with the time. Holiday however, when so crediting employees, including Har- rell, when they worked through their lunch periods, often would not make the appropriate notation explain- ing that his practice in this regard depended on how busy he was at the time. This failure to make the proper notations, it is contended had caused certain of the attrib- uted 30-minute discrepancies on Harrell's cards. I do not find Holiday to be credible. Shortly after his discharge, he telephoned Gates, the Respondent's comp- troller, on slight acquaintance to make his charges against Brasher and Kafka, the men who had terminated him. Threatening to repeat his allegations to the Re- spondent's chairman, he caused Gates to investigate them and report back to him. Holiday next also contributed to bringing about the present litigation by telling Carter during their chance meeting in December that he had been terminated for having signed a union card. With this background, Holiday cannot be considered disinter- ested. There is no contention that Holiday's termination was in any way connected with that of Carter, that it had oc- curred under circumstances calculated to chill employee support for the Union or that it involved factors other than the respondent's perception of his supervisory abili- ties. A major consideration in Holiday's termination was the controversy surrounding Harrell's timecards. While, contrary to the Respondent, I do not conclude from the record that the discrepancies were based on an intention- al effort to wrongfully benefit Harrell, still, this issue did reflect adversely on Holiday's dependability. With con- ceded knowledge that Harrell had been lax in punching out, Holiday made little effort before leaving with him to remind Harrell. His errors in totaling the hours worked by Harrell as reflected on these cards, complicated by his admittedly frequent failure to write in "No lunch," as required, when crediting Harrell and others for addition- al compensation, contributed to the stated confusion and to the Respondent's negative evaluation. 9 Except for 18 Holiday conceded that he had found it necessary to speak to Harrell on two or three occasions about his failure to punch out, even telling Harrell that, if he did not straighten out, he would have to talk to Brasher. However, Holiday with his awareness of this problem did not give Harrell any regular reminders to punch out when they left together at the end of each day, claiming that he was to preoccupied thinking about shipping matters. '1 While the General Counsel produced several timecards of employ- ees from other departments which contained similar errors, Brasher ex- Continued 316 DAVIS WALKER STEEL & WIRE CORP. the issue concerning his handling of Harrell's time- cards,20 the Respondent's objections to Holiday's work performance are essentially undisputed. For example, he did not obtain prior clearance from Brasher, as instruct- ed, before leasing the extra trailer, the event immediately leading to his discharge, he did not challenge the attrib- uted poor relationship with the inside salesman with whom he had to cooperate and with other employees as- signed to help out in shipping. Accordingly, as Holiday had been actively seeking to penalize the management of the Respondent's Memphis plant who had fired him; as he was terminated for rea- sons affecting his dependability herein evaluated, and as certain aspects of his testimony were inconsistent with the evidence, Holiday is not credited where his uncorro- borated testimony conflicts with that of other wit- nesses.2 Consistent with this finding, I accept the testimony of Brasher, corroborated by Savage, that on September 25, Harrell did leave work at 6 p.m. and did not return that evening, although Holiday wrote in a punchout time for him of 8 p.m. Any ambiguity concerning Harrell's depar- ture time that day had been promoted by Holiday's lack of diligence in enforcing the Respondent's policies con- cerning use of the timeclock. I also credit Gates' account of the October telephone conversations and Brasher's denials that when Holiday first visited his office, while still employed by the secu- rity firm and, later, when Holiday first reported Union organizanional activity, he had made the antiunion re- marks charged and had threatened, in effect, to fire every "son-of-a-bitch" in the plant to keep out the Union. C. Discussion and Concluding Findings The General Counsel, relying on Holiday's account of various conversations with Brasher where the latter as- sertedly had made antiunion remarks, and the Respond- ent's conceded knowledge that Carter had signed a union card, contends that Carter had heen fired at Brasher's in- struction because he had signed such a card. This direc- tion from Brasher had come at the time of the meeting in late June or early July, which, according to Holiday, also was attended by Savage. The General Counsel justi- fiably argues that an adverse inference should he drawn plained that he had specially reviewed only the timecards in Holiday's department having observed that Harrell was being credited for work performed after he had been seen leaving. 0o Holiday was obliged to retreat from his original testimony that he never had been reprimanded or criticized before discharge, as he later conceded that Brasher had spoken to him earlier about Harrell's time- cards. Also, contrary to his testimony, during at least the two pay peri- ods for which the timecards of Holiday and Harrell were compared, the two men generally did not travel between home and work together and, in those weeks, Holiday was not always positioned to know just when Harrell left work. 1 In assessing Holiday's credibility, I have considered Brasher's expla- nations as to why, while contemplating Holiday's replacement, he had given him pay raises and, ultimately, salaried status, and why, more than two months after his replacement had been hired, Holiday was still serv- ing as a supervisor, and have found Brasher's reasons unconvincing. Nonetheless, it is the General Counsel's burden to come forward with a preponderance of credible testimony through creditable witnesses. In the context of Holiday's testimony, as considered above, Brasher appears to be the more credible. from the Respondent's failure to call Savage to testify concerning that conference. As noted, at the time of the hearing, Savage was still one of the Respondent's super- visors, the Respondent had access to him and, in fact, did call him on rebuttal to testify as to another matter. As Savage, in these circumstances, was not asked by the Respondent about this significant meeting, an inference adverse to the Respondent's position on this point is war- ranted and made. However, it has been found in connection with Holi- day's negative credibility rating, that other antiunion statements attributed by him to Brasher did not occur. It is noted that Carter, during his brief employment by the respondent, did have a poor record for attendance and tardiness, as charged, with the overwhelming majority of absences and latenesses occurring, both as to frequency and magnitude, in the second and last month of his em- ployment, folowing the end of his 30-day probationary period. His discharge had been preceded by a day in which he missed 6 hours and 45 minutes of work asser- tedly for reasons of health, and by his failure to appear or to call in on his next day of work following a week- end, until approximately 5 hours after he was expected to report. It is undisputed that Holiday had spoken to Carter in the past about his poor attendance and punctu- ality at a time when there was not yet in effect a stand- ardized schedule of progressive discipline or a practice of giving written warnings. There is no evidence that Carter in being terminated was treated disparately. While the attendance and punc- tuality of most of the 13 other employees who thereafter were discharged for like reasons were worse than Cart- er's, at least two of those terminated had records that were less severe. Contrary to the General Counsel, I do not find unusu- al significance in that Carter was the first to be terminat- ed for frequent lateness and absenteeism. At the time in question, the plant was still new and in its startup phase and the staff was much smaller than it later became. From the number of employees who thereafter were ter- minated on these grounds, and, as later expressed in the handbook, it is clear that the Respondent had intended that frequent absenteeism and lateness constitute grounds for discipline, and that a policy has been followed of ter- minating employees for these reasons. While discipline was unevenly applied in that certain employees were permitted additional instances of lateness and absenteeism before being terminated, as noted, some dischargees had fewer such occurrences than Carter. In establishing a de- nominator, there is no evidence of anyone with a poorer record for tardiness and absenteeism than Carter who is still employed. While the respondent concededly knew that Carter and five other employees had signed union cards before Carter was fired, four of the others were still employed at the time of the hearing. One of the other card signers identified to Brasher had been terminated for reasons un- related to the Act, and of those remaining, whose sup- port for the Union also was known, one had been made a supervisor, while another, who later had resigned, was rehired. There is no discrimination or coercive conduct 317 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affecting other employees also known by the Respondent to have signed cards. Rather, some card signers were being preferred. In these circumstances, contrary to the General Counsel, Carter would have been an unlikely choice as an example for the purpose of discouraging others from supporting the Union. Except that Carter signed a card, there is no showing that he was a leader or otherwise was active during the Union's organization- al campaign. Carter had been employed for only 2 months, was vulnerable because of the frequencies of his absences and latenesses, and the discipline afforded came when these infractions were at a concentrated peak. Even with the above adverse inference drawn against the Respondent for not having called Savage to testify, in the context of the credibility resolutions made herein, I find that the General Counsel has not established by a preponderance of the evidence that Carter was terminat- ed because he had signed a union authorization card or because he, otherwise, had supported the Union. It, therefore, is concluded that his discharge was not in vio- lation of Section 8(aX3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Davis Walker Steel & Wire Cor- poration, is, and at all times material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Highway and Local Motor Freight Employees Local 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouseman and Helpers of America, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Local No. 1196, are, and at all material times have been, labor organizations within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent has engaged in or is engaging in unfair labor practices within the meaning of Section 8(aXl) and (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 2 It is ordered that the complaint be dismissed in its en- tirety. '1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 318