Delco Remy Divison

National Labor Relations Board - Board Decisions

Jul 20, 1979

243 N.L.R.B. 614 (N.L.R.B. 1979)

DECISIONS OF' NATIONA. I.ABOR R.A'I IONS BOARI)
Delco Remy Division, General Motors Corporation
and International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, UAW. Case 10-CA- 13193
July 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On April 26, 1979, Administrative Law Judge Al-
vin Lieberman issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs,
Respondent filed cross-exceptions and a supporting
brief, and the Charging Party filed a statement in op-
position to Respondent's cross-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, findings,' 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 amentded, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
' Respondent's request to file a supplemental brief in support of its cross-
exceptions is denied. In view of our finding that Talton was not unlawfully
discharged, it is unnecessary to pass on whether the Administrative Law
Judge properly relied on the Board's findings in Delco-Remy Division. Gen-
eral Motors Corporation. 234 NLRB 995 (1978). as corroboration for Talton's
testimony that Supervisor Kendall was aware of his union activity.
2 We do not adopt the Administrative Law Judge's finding that Area Co-
ordinator Johnson referred to Talton's union activity while escorting him
from the plant after his discharge. The Administrative Law Judge accepted
Talton's uncorroborated account of Johnson's statement because he found
that Johnson's denial that he spoke to Talton at all was not worthy of belief
However, the Administrative Law Judge also found that Talton was not,
generally, a truthful witness and accepted his testimony only when plausible,
corroborated. or contradicted by incredible testimony. We do not agree that
Johnson's denial that he spoke to Talton was "patently incredible." or, in
light of the Administrative Law Judge's conclusions regarding Talton's testi-
monial reliability. that there is a sufficient basis for accepting Talton's ac-
count.
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Administrative Law Judge: The hear-
ing in this proceeding, with all parties represented, was held
befiore me in Fitzgerald and Fifton. Georgia, on the (ien-
eral Counsel's complaint and Respondent's answer.' The
sole issue raised by the pleadings and litigated at the hear-
ing was whether Respondent iolated Section 8(a)(3) of the
National Labor Relations Act, as amended (the Act).' by
discharging an employee, Jeremiah Talton.
Upon the entire record, upon my observation of the wit-
nesses and their demeanor while testifing. and having
taken into account the arguments made and the briefs suib-
mitted, I make the following:
FINDIN(S i() FA( I
Respondent. a Delaware corporation, is engaged in Fitz-
gerald, Georgia, in the manufacture and sale of automobile
batteries. I)uring 1977, a representative period, Respondent
sold and shipped goods valued at more than $50,(X)O to
customers located outside the State of Georgia. Accord-
ingly, I find that Respondent is engaged in commerce
within the meaning of the Act and that the assertion of
jurisdiction over this matter by the National Labor Rela-
tions Board (the Board) is warranted.
1. ltl I lABOR tR(iANIZAI ION IN'VOI VL:)
International Union. United Automobile, Aerospace and
Agricultural Implement Workers of America. AW (the
Union) is a labor organization within the meaning of the
Act.
II. INI ROl)i( lON
This proceeding. as noted above, is concerned solely with
Respondent's discharge of Jeremiah Talton. Respondent as-
serts that Talton was dismissed for cause, principally his
absences and latenesses, and his failure to respond to coun-
seling4 regarding these matters. Respondent also asserts that
it had no knowledge of Talton's union activity. The Gen-
eral Counsel and the Union contend 5 that Respondent's as-
serted ground for the termination of Talton's employ ment
is a pretext and that the real reason for his discharge was
his having supported the Union during its effort to organize
Respondent's employees.
'The caption appears as amended at the hearing.
2 In pertinent part this section provides:
Sec. 8(a) I shall be an unfair labor practice for an employer
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of emplo) ment to encourage or discourage mem-
bership in any labor organization....
Although all the arguments of the parties and the authorities cited by
them, whether appearing in their briefs or made orally at the hearing may
not be discussed. each has been carefully weighed and considered.
' Counseling, as explained in a handbook (G.C. Exh. 6) furnished to all
employees by Respondent, consists of an employee's coworkers and supervi-
sirs discussing with the employee his work related deficiencies for the pur-
pose of assisting him in correcting them. As set forth in the handbooxk p. 28)
"If counseling is unsuccessful, ... termir.ation of employment will be neces-
sary."
5 The arguments of the General Counsel and the Union being similar In
most respects, they will be referred to hereinafter as the General Counsel's
contentions unless otherwise noted.
243 NLRB No. 116
614
DELCO REMY DIVISION, GENERAL MOTORS CORP.
111. PREILIMINARY FINDIN(iS AND (ON('L.SIONS 6
A. The Prior Proceeding Against Respondent
In a previous unfair labor practice proceeding brought
against Respondent, reported at 234 NLRB 995 (Delco
Remy, I). the Board concluded that Respondent had vio-
lated Section 8(a)( ) and (3) of the Act.
B. Credibilitv
Jeremiah Talton, whose discharge, as earlier noted, is al-
leged in the complaint as having been violative of Section
8(a)(3) of the Act, was the General Counsel's principal wit-
ness. The ultimate decision in this matter depends in large
measure on whether Talton's testimony should be believed.
Much of Talton's testimony with respect to the extent of
his union activity and counseling was contradicted by his
fellow employees. Unlike Talton. they have nothing to gain
or lose by the outcome of this proceeding. Accordingly,
they may properly be classified as disinterested witnesses.
As such their testimony was more likely to have been true
than the opposing testimony given by Talton.' This being
so, their testimony, not being in itself improbable, has been
accepted as the truth and Talton's contradictory evidence
has been rejected.
In deciding to credit the testimony given by the employee
witnesses, which was, in the main, favorable to Respondent.
I have considered the fact that they were working for Re-
spondent at the time of the hearing and that, as the General
Counsel suggests on brief, their "testimony was influenced
by their economic dependence on the Respondent." That
the witnesses in question might have been so "influenced"
occurred to me during the hearing. For this reason I paid
close attention to their demeanor while testifying. Based on
my observation, it is my opinion that their testimony was
not affected by their being in Respondent's hire and that
they testified truthfully in accordance with their oath.'
Not only was Talton's testimony contradicted by that
given by his coworkers, but it also contained internal incon-
sistencies and vacillations in, at least. the following re-
spects:'
I. Although he had written a letter to Respondent's pres-
ident concerning his discharge, he at first denied having
done so. However, he later reluctantly admitted that he had
in fact written such a letter.
'The purpose of these findings and conclusions is to furnish a frame of
reference within which to consider the facts relating to Respondent's alleged
unfair labor practices and to the conclusions to which they may give rise. To
the extent that the contentions of the parties relate to the findings and con-
clusions made here they will be treated here, although they, as well as the
findings and conclusions, may again be considered in other contexts.
7 See, in this regard. Paul Kossman. d/h/a Parkway C(enter Inn, 240 NLRB
192 (1979).
'in Que Enterprises. Inc., 140 NLRB 1001. 1003. 1010 (1963), the trial
examiner, as administrative law judges were then called. rejected the testi-
mony of two witnesses called by the respondent in that case who were then
in its employ, in part "due to the bias which he] associate[dl with their being
currently in the employ of Respondent." Commencing on the trial examin-
er's credibility resolution concerning these witnesses, the Board stated that
"the Tnal Examiner was in error in associating a bias reflecting adversely on
the credibility of [the witnessesl because they were at the time of the hearing
employees of, and working for, the Respondent."
I In this catalogue the words "he," "him," and "his" refer to Talton.
2. He first testified that "it could've happened more than
once" that when Jimmy Lockett, an employee with whom
he rode to work "came by to pick [him] up [he wasn't]
ready." However, in almost his next breath he said that
"there were [nol times when [Lockett] came by and [he]
wasn't ready." Then, in an attempt to reconcile this obvious
inconsistency and clearly hoping to avoid the morass into
which he was sinking, he lamely stated that it was "possible
[that he] wasn't ready" at times when Lockett came by for
him.
3. He stated that on May 9, 10, and 11, 1977, on each of
which days he was absent from work. he called Respon-
dent's plant to report his absence about 30 minutes before
he was scheduled to start working. He then changed his
testimony in this regard by saying that he did not know
whether he did so on each of the 3 days in question.
4. He testified that it was "not true that on a number of
different occasions Albert Webb [his team leader]'( talked
to [him] about [his] being absent from work." Nevertheless.
in answer to a subsequent question he conceded that Webb
did talk to him about his absences "[t]wo or three times."
5. After denying having been told by Webb that Webb
"was beginning to make a list of the people who came in
late to work and the people who were absent from work" he
admitted that Webb "told [himl on one occasion that
[Webbl was making [such] a list."
6. He testified that "to [his] knowledge" no union autho-
rization cards "were ... turned in to [him] by other emplo-
ees" after they had been signed. He followed this by stating
that he thought "a couple of them," including Jerry Dob-
son, had done so. He then said, concerning Dobson, that he
was "not sure" that "Dobson handed [himl a union card
that IDobson] had signed."
Finally, in assessing Talton's credibility as a witness I
have taken into account. also. his demeanor while testify-
ing, with which I was not favorably impressed.
For the foregoing reasons it is my conclusion that Talton
was not, generally, a truthful witness. This is not to say that
I have rejected all his material testimony.' It has been ac-
cepted where plausible and uncontradicted; where corrobo-
rated by credible evidence: and where it has been contra-
dicted by evidence which is, itself: implausible or
incredible.'
C. Respondent's Teant Sstemn
Respondent's plant operates on a team system.' In brief
outline and to the extent material, pursuant to this method
'O Respondent's team system will he descrnbed later.
' "It is no reason for refusing to accept everything that a witness says.
because you do not believe all of it; nothing is more common In all kinds of
judicial decisions than to believe some and not all." N.L R.B Umnieral
Camera Corporation. 179 F 2d 749, 754 (2d Cir. 1950), reversed on other
grounds 340 U.S. 474. To the same effect, see. also. Marimum Precision
Metal Products. Inc., Renault Stamping Ltd., 236 NLRB 1417 (1978)
12 Having thus concluded that Talton was not. generally. a truthful wil-
ness, no further reference will be made to his credibility. Where appropriate.
however. I will call attention to differences between Talton's testimony and
that given by other witnesses. When this is done without additional comment
it should be borne in mind that Talton's testimony has not been credited for
reasons here set forth.
'i In Frito-lLa,. Incr v. N L R B. 585 F.2d 62. 64 (3d Cir. 1978). a similar
(Conminuedi
615
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of carrying on its production, Respondent's employees are
organized into teams. Each team elects a leader.' who,
among other things, is the team's representative in its deal-
ings with management and with other teams. Regarding the
former, the team leader is, in essence, a conduit availed of
by management in transmitting orders and instructions to
the team and in receiving information from the team.
There is also a support team composed of Respondent's
management staff, including individuals known as area co-
ordinators. These persons are first line supervisors who
would be called foremen in a plant organized in a more
conventional manner.
Each team holds a formal meeting at least once a week at
which matters relating to the team's work is discussed. Also
at team meetings employees exhibiting job related deficien-
cies are counseled by the team members. team leader, and.
in extreme cases, by a member of the support team invited
to attend the meeting for this purpose.'
In addition to being counseled at team meetings, a team
member's shortcoming in any aspect of his work, including
attendance and punctuality, may be discussed with him at
any time by other team members in an effort to help the
erring team member mend his ways. This process was re-
ferred to at trial as "feedback."
D. The Union's Organizing Campaign and Talton's Union
A civitv
The Union's campaign to organize Respondent's employ-
ees began in February or March 1976. and culminated in its
defeat at a representation election conducted on September
2. 1976. Since the election the Union's organizing efforts
have been negligible.
Jeremiah Talton, whose discharge on May 18, 1977, as
already noted, is alleged in the complaint as having been
violative of Section 8(a)(3) of the Act, attended union meet-
ings, signed an authorization card, and distributed cards to
several employees. He also spoke to some about the
Union. '6
Many employees, including two members of the Union's
organizing committee, testified that they were unaware of
Talton's union activity. This, of course, does not warrant a
system was referred to as an "Open Management system of employee organi-
zation" involving "a 'team' approach in which the employees give input into
management decisions affecting their work schedules. vacation time, and
other matters directly affecting their working conditions." To a large extent
the descnption of the open management system in Frto-Lay fits the situation
obtaining in Respondent's plant.
" Team leaders are not supervisors.
it See, in this connection, fn. 4, supra.
', Talton testified that Albert Webb. his team leader. and Willie Mizell, a
member of his team, were among the employees to whom he spoke concern-
ing the Union. However, they testified that Talton did not do so. Accord-
ingly, I do not credit Talton's testimony in this regard. Talton also stated
that he distributed union literature at plant gates in August 1976. Respecting
this, Clinton Downs, a member of the Union's organizing committee who
participated in passing out union literature each time that tactic was under-
taken by the Union before the election, testified that when he was "passing
out leaflets . . . during the organizational campaign he wasl in a position
where Ihel could see other employees who were passing out leaflets but he]
never did see Talton) pass out union leaflets." Accordingly, Talton's testi-
mony concerning his distnbution of union literature is also discredited.
conclusion that Talton did not support the Union, at least
to the extent found. However, it does indicate that Talton's
support of the Union was minimal.
The limited assistance Talton gave to the Union came to
the attention of two supervisors-James Kendall, who dur-
ing the Union's organizing campaign was Respondent's
quality control superintendent, and Arthur Johnson, an
area coordinator.' Kendall exhibited knowledge that Tal-
ton supported the Union during a conversation with him in
July 1976. As Talton related, Kendall told him that he had
"heard about [Talton's] views about the Union land)
couldn't understand why [he] would take such a stand."
Talton further stated that Kendall also said that "with the
Union in [Respondent's] open door policy would he out."
Although Kendall denied talking to Talton about the
Union and denied knowledge of Talton's attitude toward it.
the truth of Talton's testimony regarding his conversation
with Kendall is supporting by a finding made in Delco
Remnt 1. There it was found that in July 1976, about the
same time. according to Talton. that Kendall spoke to him.
while questioning another employee, Alfred Phillips, about
the Union and his position respecting it. Kendall "re-
minded Phillips that the Company office was always open it'
employees had a problem but, if the Union came in, this
would not be so because employees would have to present
their problems to the Company through a shop steward."
Kendall's "open door" statement to Phillips, as reported
in Delco Rermn I, being similar to the "open door" remark
Talton testified Kendall made to him, lends corroboration
to Talton's entire testimony concerning his conversation
with Kendall. Therefore, I credit Talton in this respect and
reject Kendall's denials.
My finding that Area C('ordinator Johnson had knowl-
edge that Talton supported the Union during its organizing
campaign is based upon a statement he made while clearing
Talton through, and escorting him out of, the plant follow-
ing his discharge on May 18, 1977,' a procedure taking
some 15 to 20 minutes.
Talton testified, in this regard, that while he and Johnson
were "on the way out to the gate" Johnson said to him "I)
told [you] about talking that union talk." Johnson, on the
other hand, stated that during the "checking out process
[he] had no conversation with Talton at all," that "nothing
[was] said," and that he was "silent . . . through the whole
time [he] escorted [Talton] to the gate."
Johnson's testimony concerning his silence during this 15
to 20-minute period strains credulity beyond the breaking
point. It is. as the General Counsel states on brief. "patently
incredible." In view of this. I accept Talton's account of
what occurred and reject Johnson's.
Accordingly, I conclude that the support Talton gave to
the Union, minimal though it was, was known to Johnson
and Kendall, Respondent's quality control superintendent.
I come to a different result regarding Daniel Sallee, Re-
spondent's general supervisor of manufacturing. I find that
" This being so, it may be said, as a general proposition. that Respondent
is chargeable with knowledge that Talton favored the Union.
" The events of May 18, 1977. including alton's discharge on that day.
will be set forth in detail below.
616
DELCO REMY DIVISION. GENERAL MOTORS CORP.
Sallee was personally unaware that Talton supported the
Union."
IV. THE ALI.L(iE) UNFAIR I.ABOR PRA( ICE(
A. Facts Concerning Respondents Al.4leged I'ioltation of
Section 8(a)(3) olf the Act
Jeremiah Talton was hired by Respondent in February
1975. He was discharged on May 18, 1977. under circum-
stances alleged in the complaint as having been violative of
Section 8(a)(3) of the Act.
While working for Respondent Talton arrived late 16
times and was absent for all or part of a day 36 times.
During the last 6 months of his employment Talton was
tardy 6 times and absent 17 days.
Without avail Talton's team leader and teammates spoke
to Talton about his absences and latenesses several times.
He was also formally counseled by his team regarding these
matters on at least two occasions.
During the first counseling session, held in about Novem-
ber 1976, Talton was told, as Albert Webb. his team leader,
testified, that the team had made a "last chance" decision
on his account, that the team "had gone as far as [it] could
[in] helping [him]," and that the team was "going to turn
[the matter] over to the area coordinator."?
Talton's second formal counseling session took place on
December 9, 1976. It was attended by his entire team: Isa-
iah Kinchen. the area coordinator, and Daniel Sallee, Re-
spondent's general supervisor of manufacturing. After ses-
eral team members made statements concerning Talton's
shortcomings as an employee Sallee informed Talton, as the
former testified, that "the team had been talking to [himn
about [his] absenteeism. [his] tardiness, and his] job per-
formance," that improvtment was "needed . .. in those
three areas," that he "was on a last chance basis as of then."
that he "needed to correct himself to be a satisfactory em-
ployee." and that "if [he didn't [he would] be terminated.""'
" Talton testified that on several occasions he informed Sallee that he
favored the Union. Sallee denied that Talton had done so. To corroborate
Talton, the General Counsel called as a witness. Barbara Rawls, a former
employee whose discharge by Respondent was found in Delco Remvi I to
have been violative of Sec. 8(aX3) of the Act and which unfair labor practice
was at the time of the heanng, some 18 months later, still unremedied. Rawls
stated that in August 1977 she saw Talton and Sallee talking with each other
shortly after she had spoken to Talton and that directly following Talton's
conversation with Sallee, Talton told her that Sallee asked him whether she
was "talking to him] about the Union. and ..that Sallee warned himl
about talking to her] about the Union." On two counts Rawls' testimony
falls short of corroborating Talton's. In the first place, it is boxtstrapping.
being based upon Talton's account to Rawls of his conversation with Sallee,
not upon what she, herself, heard Sallee say. Secondly. in this respect, Rawls
appeared to be testifying. not with candor. but with bias, perhaps under-
standably, against Respondent because of her previous unremedied unlawful
discharge. Talton's testimony concerning Sallee's awareness of his union ac-
tivity having been denied by Sallee and not having been corroborated by
credible evidence, is, therefore, rejected.
2 As described above, an area coordinator in Respondent's plant is, in
more familiar language. a foreman.
21 As Robert Strickland, a member of Talton's team, testified, the term
"last chance." a not uncommon expression in Respondent's plant, means
"Just what it implies. It's an employee's} last chance [hisl last warning, so
to speak, and if [he does notl improve [hel can be terminated." Contrary to
the testimony given by Webb. Talton's team leader. and Sallee. Talton de-
nied ever having been counseled concerning his latenesses and absences and
denied, also, that he had been placed on a last chance basis
Talton's counseling and being placed on a last chance
basis did not have the desired effect. Thus. since D)ecember
9, 1976. the date on which he was last counseled. Talton
was absent on 15 days. including May 16, 1977,' : and the
entire week of May 9. and late five times. including Mla 17
and 18, the last 2 days of his employment.
The events ultimately resulting in Talton's discharge on
May 18 began with his absence from Ma 9 16. xshich had
been called to the attention of Sallee. Respondent's general
supervisor of manufacturing. Accordingly. at 7:30 a m, on
May 17. Sallee went to Talton's department to see it' alton
was working and. if so, to talk to him about his absence the
previous day and week. However. Talton did not arr\e
until 7:40 a.m.. 10 minutes later than the timnc he as
scheduled to start working.
During Sallee's conversation ith lalton on slaS 17
about his foregoing absences and lateness lalton stated
that he had undergone dental surger on londa\. MIa\ 9:
that his absence for the rest of that week sas caused b\
complications which set in afterward: and thalt hs absence
on NMonday. Ma's i6. w;IS occasioned b hs his ha g r hlad to
consult a ph'sician about a back condition. ('Concerning his
lateness on that da, alton stated that he rode t s ork
with a friend [uho] didn't drive fist enougih to gct [him to
the plant on time]." After listening to Talion's c\cuses Sal-
lee "reminded [altonl that [hel was on a last chance basis''
and that he had been "counseled belfore and talked to." :'
Talton was again tlard , on Ma 18. Ihis lateness xwas
reported to Sallee.
During the afternoon of May 18 Sallee directied Arthur
Johnson. then the area coordinator of Talton's deplrtimel.ni
to bring Talton to a plant conference room. There Sallee
told Talton. as the former testified, that he had been l[ite the
previous day. that he had "reminded" Ialton the da! be-
fore "of his last chance" that he "came in agaiin late Ito-
day]," that he ''"was filing to respond to ... coutnIsing.'
and that "lor that reason [hel would be terminated. T'' Sal-
lee, after discharging l alton. instructed Johnson to clear
Talton through the plaint and escort him to the gate.
B. Contentiott. ad ( ont littdtig Finditnts ( o c'rttnitg
Responden 's .4 1leged I iolltion of Section ()13) )f the .1 4c
"Absent an unlawful motive an employer's judgment in
discharging an employee . . . cannot be questioned."" ' Nor
does an emploee gain immunity "from discharge simpli
because he is a union member or adherent." V. I..R. R
Florida Sitel ( orporation (Tampa tFrg'e ad Iron Diii,,,.
308 F.2d 931, 935 (5th Cir. 1962).
21 All dates suhsequentl, mentioned ilhouil iating scir all ilthin
1977
'lThe findings in this paragraph are based upon, and the quotation: s p-
pearing in the text are taken Iromn. testimony gen hb Sallee Although
Talton admitted that his absence during the period here under discussion
was caused by dental and back problems he denied that he was late on Ma!
17 and, as will appear. that he was late again on Mas I I do notl beliese
Tallon's denials
24 Talton testified that during the discharge Interview Sallee stated that "it
didn't seem like Ihisl views on the union Idid himl an? good." Sallee denied
having said this Having 1ound that Sallee was personlls unaware that Tal-
ton was a union adherent I do not believe alton I credit, instead. Sallee',
denial.
2 Irmeer tflanusi-ilirln ( o,?ip.m, i 187 N RB 88S 8 I 1971 I
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent argues that Talton's discharge was not moti-
vated by a reason interdicted by the Act. Respondent con-
tends that alton was dismissed because he failed to re-
spond to counseling concerning his absences and
latenesses. In opposition it is the General Counsel's posi-
tion that Respondent's stated reason for Talton's discharge
is pretextual and was "seized upon," as he states on brief, as
a "pretext to rid itself of Talton, in order to finally secure its
'pound of flesh' from a key Union activist."
Unlike the explanation for a discharge offered by an em-
ployer in another case2 which "fail[ed] to stand under scru-
tiny'." the reason given by Respondent for discharging Tal-
ton, i.e., his failure to respond to counseling concerning his
latenesses and absences, is supported by the evidence?.
Thus. as I have found. during his employment with Re-
spondent for a period of a little over 2 years Talton was
absent for all or part of a day 36 limes and that during the
same period he was late 16 times. Talton's impressive rec-
ord of absences and latenesses moved his team, after unsuc-
cessfully attempting by talking to and counseling Talton, to
persuade him to regularize his attendance and improve his
punctuality, to make a "last chance" decision on his ac-
count, and to refer the matter to Respondent's management
personnel.
Follosving this. as the evidence further establishes, Talton
was again counseled on December 9, 1976. At this counsel-
ing session, attended by Daniel Sallee, Respondent's gen-
eral supervisor of manufacturing. Sallee informed Talton
ithat he was placing him on a "last chance basis" and
warned Talton that if he did not "correct himself' he would
he discharged. Notwithstanding this warning and his hav-
ing been given a second "last chance" on December 9.
1976. between that date and May 18. 1977, when he was
discharged for failing to respond to counseling, Talton was
late 5 times, including the last 2 days of his employment.
and absent 15 times, including the entire week of May 9
and the following Monday, May 16.
On brief the Union argues that Talton was "legitimately
away from work from May 9 through May 13 [because o]
complications resulting from the extraction [of an] im-
pacted wisdom tooth." However, this argument begs the
question. As was stated, in this regard, in White Pine, Inc.,
213 NLRB 566, 567. 576 (1974), concerning an employee
whose discharge for poor attendance was held by the Board
not to have been violative of Section 8(a)(3) of the Act:
There is no question that there was cause for dis-
charge in Howe's case. He had a bad attendance rec-
ord, he had been warned, and he persisted in being
absent. The reason he was absent is immaterial, what
mattered to Respondent was the fact that he was ab-
2 As an additional reason for discharging Talton Respondent asserts that
he did not do his work properly. However, having concluded, as will be seen.
that Talton's absences and latenesses warranted his discharge and that his
discharge was not unlawfully motivated, a finding on the issue of whether
the manner in which Talton worked contributed to his discharge is unneces-
sary.
27 N.L R.B. v. Thomas W'. Dant, et al., co-partners d/b/a Darn & Russell,
Lid., 207 F.2d 165, 167 (9th Cir. 1953).
t2 In this respect, this case differs from Delco Remy I in which Respon-
dent's asserted ground for discharging an employee did not withstand scru-
tiny and the discharge was found by the Board to have violated Sec. 8(a)(3)
of the Act.
sent. That his absences were due to "personal prob-
lems" would not be reason for Respondent to be more
sympathetic.
Seemingly, then. Respondent had sufficient cause to dis-
charge Talton. But this does not end the inquiry. There
remains for consideration the General Counsel's argument
that Respondent "seized upon [Talton's absences and late-
nesses and his failure to respond to counseling in these
areas as a pretext] to rid itself of Talton. in order to finally
secure its 'pound of flesh' from a key union activist."
The short answer to this contention is that Sallee, Re-
spondent's general supervisor of manufacturing, who, as he
testified, "made the decision to terminate [Talton's] employ-
ment." although chargeable with knowledge that Talton
was a union adherent, was personally unaware of his union
activity. Moreover, Talton was not a "key union activist,"
as the General Counsel asserts, but an employee whose
union activity, as I have found, was minimal. In addition.
at the time of Talton's discharge the union activity in Re-
spondent's plant had been virtually moribund for about 8
months. These factors, in my opinion, effectively refute the
General Counsel's pretext theory.
Furthermore, had Respondent been looking for a pretext
to discharge Talton because he had supported the nion
during its organizing campaign it would not have had to
wait until May 18, 1977, to find it. It could have discharged
Talton for absences and latenesses at any time during the
campaign." And Respondent could have discharged Talton
for his irregular attendance and punctuality on December
9, 1976, when Talton was counseled by his team and Sallee
concerning his absences and latenesses.)" However, instead
of doing so, Sallee merely gave alton a warning and
placed him on a "last chance basis."
In N.L.R.B. v, New'cman Green,. Inc., 401 F.2d 1. 4 (7th
Cir. 1968), cited with approval in 'erineer anufiacturing
Company, 187 at 888, 892. supra, and Farmers Insurancc
Group, 174 NLRB 1294. 1300 (1969), it was held that where
an asserted ground for a discharge is claimed to be pre-
textuous and availed of b an employer to conceal a pro-
scribed motive the employer's failure to take advantage of
an earlier opportunity to attain the same result "weakens
the basis for the Board's attributing an antiunion motive to
the discharge." To the same effect see, also, Merle Lindse,
Chevrolet, Inc., 231 NLRB 478, 485 (1977)1 Jenkins Manu-
facturing Company, 209 NLRB 439. 443 (1974); and Klate
Holt Company, 161 NLRB 1606. 1611 (1966).
For the foregoing reasons I reject the General Counsel's
pretext contention. I find, rather, that Talton's dismissal
was not motivated by considerations interdicted by Section
8(a)(3) of the Act, but was caused, as respondent asserts, by
his failure to respond to counseling concerning his absences
and latenesses.
"Management can discharge for good cause, or bad
cause, or no cause at all. It has ... complete freedom with
but one specific, definite qualification: it may not discharge
29 By July 1976. while the campaign was in progress and, when, as has
been found, Talton's limited assistance to the Union came to the attention of
James Kendall. Respondent's quality control superintendent. Talon had
been absent 13 times and late on four occasions since the commencement of
his employment with Respondent.
i B this time Talton had been absent 21 times and late 11 times.
618
I)FI.()O REMY DIVISION, G(iNtLR\I MO()ORS ('(ORI
when the real motivating purpose is to do that which Sec-
tion 8(a)(3) iorbids.... An unlawful purpose is not lightly
to be inferred. In the choice between lawful and unlawful
motives, the record taken as a whole must present a sub-
stantial basis of believable evidence pointing toward the
unlawful one. " lUpon careful analksis I do not find such a
"substantial hasis" to be present here.
Accordingl), I conclude that respondent did not violate
Section 8(a)(3) or ( I ) of the Act bh discharging Talton. MN
order will, therefore, provide for the dismissal of the corm-
plaint.
CN(I USIONS ()I- I.A
I. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3 N.L R..B q. M( ah t, t .al /h (,olumhbus tarhle o rAv, 233 ti.2d
40. 413 (5th (ir. 1950).
2. Hie i nion is a labor organi/allon l Ithin the tclneing
of Section 2(5) of the Act.
3. Respondent did not engage in untfai r prlictices
within the meaning of Section 8 (al(31 or I I I the Xcit hb
discharging Jeremiah lalton.
I!pon the foregoing findings of ctl. conctlusions l la,,
and upon the entire record, and pursuant to Sectlion I)( e) t
the Act, I herebh issue the tllov ing:
ORI)lR '
It is ordered that the complaint be. and the salmc hei'chb
is. dismissed.
" In Ihe een n excepIllrIs lire filed a prom ,,led in Sec 124 el1 the
Rules and Regulloens e1 he Nalional l.ahbr Rel.lilon Blrid. the indings
coincluswlmns. and order herein shall as prom ided in Sec 11)2 48 IfI the Rulc,
and Regiulations, he adopled h the Board and hecOrlC i, i linclngs. cnclu
tns, and Order, and all ohe.iins iherele shall e deemied m .i scd or il
purpoises
(,61'