Tell City Chair Company

National Labor Relations Board - Board Decisions

Jul 29, 1981

257 N.L.R.B. 374 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tell City Chair Company and International Brother-
hood of Pottery and Allied Workers Union,
AFL-CIO. Case 9-CA-15341
July 29, 1981
DECISION AND ORDER
On April 24, 1981, Administrative Law Judge
Wallace H. Nations issued the attached Decision in
this proceeding. Thereafter, the Charging Party
filed exceptions and a supporting brief, and Re-
spondent filed a brief' in opposition to the Charg-
ing Party's exceptions.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and briefs and has decided to
affirm the rulings, findings, 2 and conclusions 3 of the
Administrative Law Judge and to adopt his recom-
mended 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.
' Respondent in its "Answering Brief to the Charging Party's Excep-
tions" submits, inter alia, that the Charging Party's exceptions and brief
should be disregarded as they do not comply with Sec. 102.46(b) and (c)
of the Board's Rules and Regulations. We find, however, that the Charg-
ing Party's exceptions and brief are in substantial compliance with said
rules, and thus reject Respondent's contention.
2 The Charging Party 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 respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
3 We find it unnecessary to rely on the Administrative Law Judge's
finding that Clyde Finlay, Respondent's corporate director and the man
who made the decision to discharge the alleged discriminatee, Jimmy
Sanders, had no knowledge of the two arguments between Sanders and
Eugene Whitworth, Respondent's foreman, about the Union.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge:
The International Brotherhood of Pottery and Allied
Workers Union, AFL-CIO, herein called the Union,
filed a charge against Tell City Chair Company, herein
the Respondent, on May 19, 1980. The Regional Direc-
tor for Region 9 issued a complaint on June 25, 1980.
The complaint alleges that on or about May 9, 1980, Re-
spondent discharged Jimmy R. Sanders because of his
union activity, thereby discouraging membership in a
labor organization, and Respondent thereby has been en-
gaging in unfair labor practices within the meaning of
Section 8(a)(l) and (3) of the National Labor Relations
257 NLRB No. 64
Act, as amended, herein called the Act. In its answer,
Respondent denied all allegations that it violated the
Act. A hearing was held before me at Leitchfield, Ken-
tucky, on February 19 and 20, 1981.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent manufactures furniture at plants in Tell
City, Indiana, and Leitchfield, Kentucky. During the
year preceding issuance of the complaint Respondent
had direct inflow in excess of $50,000. 1 find that Re-
spondent is an employer within the meaning of the Act
and that it will effectuate the policies of the Act to assert
jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Pottery and Allied
Workers Union, AFL-CIO, referred to as the Union, is a
labor organization within the meaning of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
1. Background
The Company operates one plant in Leitchfield, Ken-
tucky, and four plants in Tell City, Indiana. All of the
approximately 700 production and maintenance employ-
ees of the Company's Tell City plants are represented by
the Union which has a collective-bargaining agreement
with Respondent. In a National Labor Relations Board
election conducted on February 1, 1980, the approxi-
mately 65 production and maintenance employees at the
Leitchfield plant voted against representation by the
Union, with the Union losing by a relatively narrow
margin.
Clyde E. Finlay has been corporate director of indus-
trial relations supervising all five plants since March
1977. He has the exclusive authority to discharge em-
ployees at all plants. J. R. McAllister has been plant
manager of the Leitchfield plant since 1977. Eugene
Whitworth is the rough mill foreman at Leitchfield,
having succeeded Randall Farris. Don Smith is personnel
manager over the Leitchfield plant.
The Leitchfield plant produces "dimension stock"
from raw lumber, which is shipped to Respondent's Tell
City plants for use in fabricating furniture. Production
begins in the rough mill where cutoff saw operators cut
rough lumber planks measuring approximately 10 inches
by I inch by 12 feet and weighing about 30 pounds into
shorter lengths. An average cutoff saw operator saws ap-
proximately 2-1/2 boards per minute, for which he is
paid the highest hourly wage rate in the plant.
The primary responsibility of the cutoff saw operator
is to carefully execute his cuts to maximize the resulting
yield-that is, the amount of stock produced which is
usable in subsequent operations. Achieving high yield re-
374
TELL CITY CHAIR COMPANY
quires the cutoff saw operator to inspect both sides of
the rough planks for defects prior to any cutting. Failure
to do so produces stock which must be scrapped because
of defects which could have been cut out had the opera-
tor seen them. Because inspection prior to cutting is es-
sential to the production of usable stock, the Company
has maintained a mandatory rule since 1975 requiring
cutoff saw operators to turn each plank prior to the ini-
tial cut and once again half way through the cutting of
each rough plank. This rule was fully explained on sever-
al occasions to saw operators, including Sanders, by
Randall Farris, Eugene Whitworth's predecessor as
rough mill foreman.
2. The Company's efforts to increase yield
Despite the existence of this rule the Company has had
considerable difficulty in achieving acceptable yield
levels at the Leitchfield plant. Although the average
yield for the industry (that is, the percentage of the
rough lumber which is usable after cutting) is approxi-
mately 50 percent, yield at the Leitchfield plant averaged
only 39 percent. This disparity in percentage yield was
particularly important to the Company inasmuch as a 1-
percent increase in yield would boost average annual
revenues by $25,000 to $50,000. The fact that yield was
approximately I1 percent below the industry average
cost the Company between $275,000 and $550,000 per
year due to poor yield.
When he became plant manager at Leitchfield in 1977,
McAllister instituted several steps to improve yield.
Among these steps were several equipment alterations
aimed at simplifying the operation of the cutoff saws. In
addition, management held several meetings with cutoff
saw operators at which the need for higher yield and the
means of obtaining such yield were discussed at length.
The first of these formal meetings was conducted by
McAllister in March 1978. During that meeting, attended
by all cutoff saw operators, including Sanders, the
proper procedure for operating the saws was covered at
great length. Especially emphasized was the need to turn
boards prior to cutting, and once again before subsequent
halfway cuts, to ensure that cuts were made from the
worst side of the board thus cutting out any defects. At
the conclusion of the meeting, the operators were per-
mitted to ask questions, although none chose to do so.
During the next year, yield at the Leitchfield facility
remained unsatisfactory. In an effort to boost yield, an-
other meeting was held with all cutoff saw operators, in-
cluding Sanders on February 12, 1979. Farris and McAl-
lister jointly conducted the meeting at which the need to
turn and inspect both sides of a board at least twice was
reemphasized.
Soon after succeeding Farris as rough mill foreman,
Eugene Whitworth observed one of the cutoff saw oper-
ators ruin a saw blade when he hit a metal plate on the
underside of the board because he failed to turn and in-
spect it prior to cutting. Whitworth held a meeting on
August 31, 1979, and all cutoff saw operators, including
Sanders, were again reminded they were to turn and in-
spect boards prior to cutting and halfway through the
cut to obtain the highest yield and to avoid serious
damage to the saws.
Despite these efforts to improve yield, the Company
continued to experience low yield. As a result, Ronald
Harper, general foreman at the Tell City plants, tempo-
rarily moved to the Leitchfield plant between December
1979 and February 1980. His inspection revealed that
none of the cutoff saw operators was following instruc-
tions in their operation of the saws. Especially notewor-
thy was the fact they were not turning and inspecting
boards prior to cutting and they were not turning boards
at least once during the cut as previously instructed.
Harper reported the results of his inspection to McAllis-
ter and to Finlay. Following Finlay's instructions,
Harper proceeded to draft guidelines for the operation of
the cutoff saws. Subsequently, a meeting was held with
all cutoff saw operators, including Sanders, on February
15, 1980. During this meeting, each operator was given a
copy of the guidelines after which the guidelines, includ-
ing the requirement that boards be turned twice and in-
spected prior to cutting, were read and thoroughly re-
viewed. Guidelines 2 and 4 state: "Each board must be
turned before starting to cut to determine worst side of
the board. Each board must always be cut from worst
side .... Turn each board during a cutting operation
and look at the board so that each cut will always be
taken from worst side of each board to obtain maximum
yield from that board." Harper also outlined at length
the steps the Company had previously taken to improve
yield at the Leitchfield plant, and warned employees that
failure to follow the guidelines would not be tolerated.
When yield continued to be unsatisfactory, McAllister
conducted another meeting with all cutoff saw operators,
including Sanders, on February 28, 1980. The guidelines
were again discussed, with special emphasis placed on
the requirement that boards be turned and inspected
once before cutting and once during cutting.
During the next month, yield did not increase. As a
result, another meeting was held with all cutoff saw op-
erators, including Sanders, on April 8, 1980. In addition
to again discussing the guidelines, the Company noted
the economic problems resulting from the low yield.
McAllister informed the operators that failure to turn
and inspect boards prior to cutting and during cutting
would be considered insubordination under established
plant rules and would result in discharge.
Even after this explicit warning, yield failed to im-
prove. A final meeting was held on April 17, 1980.
McAllister testified without contradiction that, prior to
this meeting, he observed Sanders fail to turn boards
twice and had received a report to the same effect from
Finlay. All cutoff saw operators, including Sanders, at-
tended this meeting. McAllister again reviewed the
guidelines, reiterating his warning that "[ilf anybody was
caught not following the guidelines they would be con-
sidered insubordinate and they would be discharged." It
was at this meeting that Sanders asked a question about
how he should cut when he got to the end of the board.
McAllister told him to always cut for the longest lengths
unless his foreman gave him contrary directions.
' It is Sanders' position that he asked McAllister, after the meeting,
"What did he want. ootage or ield?" McAllister told him h needed
( Continu ed
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Sanders' employment with the Company
Sanders was first employed in September 1975. After
performing a variety of jobs, he became a cutoff saw op-
erator in 1977. During his employment Sanders received
several disciplinary warnings. On January 2, 1980, he
was counseled about his spending excessive time in the
restrooms. Sanders admits excessive time in the restroom,
but claims this was due to hemorrhoids which he thinks
were caused by lifting boards. Whitworth instructed
Sanders to see a doctor which he admits he did not do.
Shortly after talking to Sanders about this problem,
Whitworth caught Sanders and Bobby McCombs throw-
ing golf tees used as saw markers at each other. Both
employees were warned that further conduct of that sort
would result in formal discipline.
A few days later, Whitworth again warned Sanders
for spending too much time in the restroom. Approxi-
mately a month later, Sanders again spent excessive time
in the restroom, and Whitworth issued a formal warning
to him. During this same period of time, Whitworth
warned several other employees, including Paul Newton,
Sonny McGrew, and Coy Smith, about wasting time in
the restroom.
4. Sanders' alleged insubordination on May 5, 1980
On May 5, 1980, McAllister observed Sanders cutting
boards without turning or inspecting them. Although he
initially did not count the number of boards Sanders
failed to turn, he noted that Sanders was not turning the
majority of them, and when he began to count he deter-
mined that Sanders turned only one of seven boards.
After observing Sanders, McAllister contacted Finlay in
Tell City and requested instructions. Finlay instructed
McAllister to double check with Sanders' supervisor to
be sure he was not following some special instructions.
McAllister did so and instructed Whitworth to observe
Sanders. After observing all of the operators, Whitworth
reported to McAllister that Sanders was the only opera-
tor who was not turning boards as instructed and that he
had turned only 3 of 15 boards he cut.2
more yield as the yield was low. To an extent, another witness, fellow
cutoff saw operator Dcnny Gore, supports Sanders' allegation as to the
wording of his question or questions to McAllister. The General Counsel
contends it is of importance that, regardless of whether there were one or
two questions presented to McAllister at the meeting, Sanders was the
only employee challenging McAllister about what he was attempting to
explain to them. The General Counsel further contends that whether
McAllister accepted the inquiry by Sanders as facetious or as a pseudo
prores it did not enhance Sanders' position as an employee with McAllis-
ter.
- The above version of the observations by McAllister and Whitworth
of Sanders' performance is basically that of Respondent. Sanders' version
varies from this somewhat. Sanders testified that Whitworth came to his
saw area about 6:35 a.m., and gave him different sizes of board to cut and
stayed about 4 minutes. Sanders observed McAllister also entering the
area for a minute or two about 5 minutes before Sanders was called to
the office. Witness Gore testified that he saw McAllister on the day of
Sanders' suspension but that he did not observe Foreman Whitworth
watching Sanders cutting or turning any boards that day. Sanders testi-
fied that the foreman did not see him cut any boards. Although the actual
number of boards McAllister and Whitworth each observed Sanders han-
dling may or may not be accurate, I believe from the preponderance of
the evidence that both actually did observe Sanders on the day of his sus-
pension. The record contains a very detailed description of the cut sawv
area in the plant and it is quite possible that a supervisor could observe
McAllister and Whitworth then returned and together
they observed Sanders during which time he continued
to be the only operator who failed to turn and inspect
boards prior to or during cutting. McAllister again tele-
phoned Finlay and was instructed to immediately sus-
pend Sanders pending investigation of his insubordina-
tion.
5. Sanders' suspension and termination
McAllister summoned Sanders to his office, told him
that he had been seen failing to turn and inspect boards
before and during cutting, and asked him why he was
not turning the boards as he had been instructed. Sanders
initially said he had been turning the boards, but later he
twice admitted, "I guess I just forgot." Sanders gave no
other explanation for his failure to turn the boards.
McAllister reminded Sanders he had been warned with
all other saw operators of the consequences of failure to
turn and inspect the boards and that, because of his fail-
ure to heed those warnings, he was being suspended
pending further investigation. 3
Two days later, Finlay arrived from Tell City to in-
vestigate the matter. On May 7, 1980, he and Smith met
with Sanders, and asked him to respond to the charge of
insubordination. During the meeting, Sanders clearly in-
dicated he understood the requirement that boards be
turned and inspected at least twice, once prior to any cut
and again before the successive cut. He also clearly ad-
mitted he did not follow this procedure but instead in-
spected boards only prior to cutting the first time, de-
spite having received no instructions to alter the proce-
dure. 4
Finlay explained he would speak with McAllister and
Whitworth and requested that Sanders meet with him
again that afternoon. Sanders declined to return that day
but agreed to meet the next day. Finlay consulted with
McAllister and Whitworth and concluded that their eye-
witness observations and Sanders' admissions clearly
proved insubordination, and that Sanders should be dis-
charged as he had been warned of this consequence.
Finlay met with Sanders again on May 8, informed him
of the decision, and gave him his termination notice.
6. Evidence of alleged union animus
Based on the following evidence, the General Counsel
contends that Respondent was motivated to discharge
Sanders because of union animus and that its stated
reason for the discharge was merely a pretext:
a. Sanders voted in a Board election at the Leitchfield
plant conducted in early 1979 and participated in the
1980 union campaign which commenced in November
1979. Sanders testified that he solicited about 20 union
the cut saw operation for a short period of time without attracting the
attention of any of the cut saw operators.
' Sanders. at the hearing, denied the admission that he had failed to
turn the boards after the April 17 meeting to the date of his suspension.
However, Sanders also testified that he was angry and upset at the sus-
pension and termination meetings and his memory of exactly what was
said by himself and others on this occasion is understandably vague. Re-
spondent's version of the meetings is credibly supported by se'eral wit-
nesses' testimony and contemporaneous notes
'See fn 3.
376
TELL CITY CHAIR COMPANY
authorization cards in a unit of approximately 60 employ-
ees. He was also one of the union observers at the elec-
tion on February 1, 1980. The other union observer was
James Howard, a maintenance repairman, who was also
the union observer at the prior election on January 12,
1979. About 45 minutes before the February 1, 1980,
election, Whitworth asked Sanders and other employees
for their support in the election. According to Sanders,
Whitworth told him that he would appreciate his support
in the election. Whitworth testified that he did not re-
member stating that he would appreciate Sanders' sup-
port. Whitworth admitted that he did not know Sanders
was selected to be the second observer for the Union.
b. Sanders claims that his relationship with Whitworth
before the election was "pretty good" but, after the elec-
tion, Whitworth began to abuse him. The substance of
this abuse apparently consists of two very short argu-
ments Sanders had with Whitworth about the Union
after the election. About 2 weeks after the election,
Sanders testified that Whitworth started to argue with
him about which was best for Sanders, the Union or the
Company. It is Sanders' testimony that he told
Whitworth that it was "no use to argue as the Company
had won and there was nothing more to argue about."
Sanders further testified that, approximately 3 weeks
later, Whitworth argued with him and pointed his finger
at his nose while discussing the Union. Whitworth
denied both incidents involving argument about the
Union. Witness Donny Gore, another cutoff saw opera-
tor, testified as to observing at a distance the second al-
leged argument. He did not overhear the conversation
and did not know what the substance of the argument
was, although he testified that he was told at a later time
by Sanders that it was about the Union.
c. Before the election, Whitworth counseled Sanders
about excessive time spent in the restroom and advised
him that he should see a doctor about the physical prob-
lem which may have caused the time in the restroom.
After the election, Whitworth warned Sanders verbally
and on March 19, 1980, prepared a written warning
against Sanders for visiting the restroom three times on
March 18, 1980. As noted before in this decision,
Whitworth also warned three other employees about ex-
cessive time spent in the restrooms. Based on the evi-
dence of record, I can only conclude that any unde-
served treatment by Whitworth of Sanders is reflected
by the two postelection conversations or arguments be-
tween the two men. The warning of Sanders, as well as
the other involved employees who were spending exces-
sive time in the Company's restroom appears to be a
valid exercise of the supervisor's responsibility. Having
observed both of the young men, Whitworth and Sand-
ers, who appear to know each other quite well, I believe
that the two arguments or conversations could, at least
in part, involve the union election. However, as will be
discussed in greater detail below, I believe the two argu-
ments were isolated incidents that began and ended with
the two involved persons. Based on all the evidence of
record, I do not believe that they were motivated by
management action nor do I believe that they were part
of any antiunion campaign by management. There is no
evidence in this record reflecting an antiunion campaign
at any stage conducted by management, either before or
after the 1980 election.
d. Sanders alone was suspended and fired for viola-
tions of the Company's rules regarding flipping of boards
while the other cut saw operators, allegedly also guilty
of violations of this rule, were not disciplined by the
Company. In support of this contention, the General
Counsel notes that Ronnie Harper, general foreman at
the Tell City, Indiana, plant testified that he was present
with Whitworth in the cutoff saw department between
December 1979 and February 1980. On one occasion, he
told Whitworth that none of the operators was turning
the boards. He subsequently had McAllister and Smith
watch these operators not turning the boards. Harper
suggested as a remedy that Respondent prepare guide-
lines for future policy and no warnings were given to the
operators. Whitworth also knew some of the operators
were not turning the boards n or about February 28,
1980, and also on April 8, 198u, according to his memo-
randums. Whitworth never brought any recommendation
to McAllister about warning, suspending, or disciplining
any cutoff saw operator. However, he must have given
the information to McAllister as instruction and warning
meetings were held shortly after the date of each memo-
randum with the cutoff crew. McAllister testified he
never caught any other cutoff men not turning the
boards after the April 1980 warnings. McAllister said
that 2 months before April 17, 1980, he noted Sanders
missed turning boards. McAllister admitted that on nu-
merous occasions Sanders turned the boards.
e. Cutoff saw operator Bobby McCombs had worked
for 8 months with several bad reports and was not se-
verely reprimanded for a bad yield. He was not replaced
by another operator for several months even during the
period when Respondent claimed it was imperative to
attain good yield. ' Subsequent to the suspension of Sand-
ers, a plant janitor allegedly told McAllister that he had
observed Darrel Whitworth, the supervisor's brother, ne-
glecting to turn over boards. Though the record is not
clear on whether any action was taken by management
to verify this allegation, Whitworth has subsequently
been transferred to another department.
f. James Howard, a maintenance repairman, on Janu-
ary 15, 1980, 16 days before the election, was given an
order by a leadman, Leslie Blanton, to push a welder to
the boilerroom to effect a repair. Although the record is
not clear on whether Howard had permission or not to
do so, Howard went to the restroom prior to pushing the
welder. Upon returning to the area where the welder
should be, Howard found that it was missing. He then
discontinued his assigned task and went about talking to
other employees. Shortly thereafter, Howard was sum-
s What the General Counsel does not note in his arguments and what
virtually every witness was relucant to discuss was McCombs' relatively
low mental capabilities The evidence reflects that McCombs could nei-
ther read nor write and as incapable of following all but the simplest
instructions with regard to any task at the plant. I believe from the evi-
dence that McCombs was given special treatment compared to the other
employees because of a good personality, admitted low capacities. and a
willingness to do menial and even dangerous tasks that other employees
would not undertake McCombs was killed in an accident in the plant
sometime after the incidents involved in this proceeding occurred
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moned to the office of McAllister and reprimanded. The
General Counsel contends that the purpose of the repri-
mand was to create an attitude of fear or intimidation in
the hearts of the employees prior to the election. After
the election, Howard was promoted and given a higher
rate of pay.
I find that the only objective evidence of record of
any union animus on the part of Respondent consists of
the two arguments between Sanders and Whitworth,
which Whitworth continuously denied involved the
Union as a topic. I have heretofore given credit to Sand-
ers' version of the two arguments. However, I find that
in and of themselves they do not constitute sufficient evi-
dence to support a finding of any union animus on the
part of Respondent. Absent the isolated arguments be-
tween Sanders and his immediate supervisor, the record
is practically without any evidence supportive of the
proposition that Respondent's termination of Sanders
was motivated by an unlawful desire to discourage union
activity. No other violations of any kind are alleged in
the complaint and the Company has a history of harmo-
nious relationship with the involved Union at four of its
five plants. There is no showing in this record that the
Company has ever previously been engaged in any unfair
labor practices.
Further, there is no showing in this record that the
man who actually made the decision to suspend and ter-
minate Sanders, Clyde Finlay, had any knowledge of
Sanders' relationship with Whitworth. Finlay has not
been shown to have had knowledge of the alleged union
discussions after the election and I do not find that these
were factors in his decision to discharge Sanders. Addi-
tionally, Plant Manager McAllister, who is contended by
the General Counsel to have held personal animus
toward Sanders, has not been shown to have harbored
any such animus for any reason relating to Sanders'
union activity. The only incident to which the General
Counsel can point which would establish an animus is
the contradiction in testimony about certain questions
asked by Sanders of McAllister at the April 17, 1980,
meeting of the cutoff saw operators and company offi-
cials. The General Counsel has drawn the inference that
these questions upset McAllister and presumably led him
to find reasons to discharge Sanders. I cannot find from
the evidence that the questions, whatever they may have
been, upset McAllister in any respect and certainly not
sufficiently to seek reasons for Sanders' discharge.
The General Counsel's contention noted above that
Sanders was singled out for harsh treatment because of
his union adherence and that his discharge constitutes
unlawful discrimination is not well taken. I find that the
record as a whole supports the finding that Sanders
would have been discharged by Respondent regardless
of his union activity for his violation of the Company's
rules. The Company has proven that yield at its Leitch-
field, Kentucky, plant was below average and that the
reason for the low yield was the failure of the employees
to follow company instructions about flipping or turning
boards in the cutoff saw operation. Respondent explained
to the cutoff operators, including Sanders, on repeated
occasions the reasons for the need to increase yield. In
increasingly severe tones company officials warned the
operators the penalties which would result from the fail-
ure to follow company instructions with regard to turn-
ing boards. These warnings culminated in the April 8
and 17 warnings that employees would be summarily dis-
charged for insubordination if they were found not turn-
ing boards in accordance with company procedure.
There is no proof in this record that, between the April
17 warning and May 5, any cutoff saw operator other
than Sanders was observed failing to turn boards in ac-
cordance with the Company's policy. Thus, it is conclud-
ed that Respondent had a valid and legitimate business
reason for suspending and subsequently discharging
Sanders as a result of the May 5 observance of Sanders
not following the correct procedure. There is no proof in
this record that had any other cutoff operator been ob-
served by management after the April 17, 1980, warning
failing to turn boards properly that that person would
not have been summarily terminated.
B. Concluding Findings
The General Counsel concedes that it is well estab-
lished that a discharge may be for good cause or bad
cause or no cause at all except that a discharge is unlaw-
ful when the real motivating purpose is contrary to the
prohibitions of Section 8(a)(1) or (3). The controlling
Board decision on burden of proof in this proceeding is
Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083 (1980). In Wright Line, the Board established the
following causation test in all cases alleging violations of
Section 8(a)(3) or violations of Section 8(a)(1) turning on
employer motivation. First, it requires that the General
Counsel make a prima facie showing sufficient to support
the inference that protected conduct was a "motivating
factor" in the employer's decision. Once this is estab-
lished, the burden will shift to the employer to demon-
strate that the same action would have taken place even
in the absence of the protected conduct. Viewing all the
evidence of record, and for the reasons set forth above, I
find that the General Counsel has not established that the
Company's termination of Sanders was motivated by an
unlawful desire to discourage union activity. According-
ly, I find that Respondent's reasons for discharging Sand-
ers were not pretextual, but served a legitimate business
purpose and further that Sanders would have been dis-
charged for his actions regardless of his union activity.
Accordingly, I conclude that Respondent did not vio-
late Section 8(a)(3) or (1) of the Act by discharging
Sanders. Inasmuch as the complaint alleges no other vio-
lations of the Act by Respondent, my order will provide
for its dismissal. Upon the foregoing findings of fact and
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(3) or (1) of the Act
by discharging Jimmy Sanders.
378
TELL CITY CHAIR COMPANY
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, as amended, I hereby issue the following rec-
ommended:
ORDER 6
It is hereby ordered that the complaint be, and the
same hereby is, dismissed.
' In the event no exceptions are filed a provided b Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board the find-
ings, conclusions, and recommended Order herein shall. as provided in
Sec. 102 48 of the Rules and Regulations. be adopted bh the Board and
become its findings, conclusions. and Order. and all objections thereto
shall be deemed waived for all purposes