V & W Castings

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 912 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warren L. Rose Castings, Inc. d/b/a V & W Castings
and Michael J. McMurry. Case 21-CA- 15195
August 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 29, 1977, Administrative Law Judge
Roger B. Holmes issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
an answering brief in opposition to General Coun-
sel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only as consistent herewith.
The Administrative Law Judge found the evidence
did not establish that Respondent discharged em-
ployee McMurry in violation of Section 8(a)(3) and
(1) of the Act. We disagree.
The following facts even as found by the Adminis-
trative Law Judge are not in dispute: On October 29,
1976, McMurry distributed union literature and
authorization cards when he punched in at 7 a.m., at
his morning break and during his lunch period.
Danny, a leadman, walked within 5 feet of a
conversation in which McMurry, during his lunch
period, was discussing union dues. On at least one
occasion on October 29, Danny and Supervisor
Puleo admittedly discussed McMurry and, according
to Puleo, Danny pointed to McMurry and reported
that he was "bothering some of the guys in the core
department, talking to some of them." Puleo testified
that an hour after this conversation he told Maxwell,
Respondent's vice president, that he wanted to "get
rid" of McMurry. Maxwell, who had never before
discharged any of the employees in Puleo's area,
immediately discharged McMurry without giving
him any reason for the discharge or completing the
customary personnel change authorization form
explaining the discharge.' McMurry had recently
received a raise along with the other employees in the
core room, and had never received a written warning
for absenteeism or for leaving his machine to talk
with other employees. The reason for the discharge,
according to Maxwell, was McMurry's absenteeism,
i Although this form is automatically prepared when an employee is
terminated. Puleo could not explain why the form was not prepared when
McMurry was discharged.
231 NLRB No. 126
tardiness, and failure to be at his post during working
hours. Maxwell testified he refused to give McMurry
a reason for the discharge in order to teach McMurry
a lesson because McMurry had failed in the past to
call in to report he would be absent or late.
The Administrative Law Judge credited the testi-
mony of Puleo and Maxwell that they were unaware
of McMurry's union activity and further found that
the discharge was not pretextual. However, the
testimony of Puleo and Maxwell is marked by
inconsistencies, ambiguities, contradictions, and
vague or incredible statements which were totally
ignored by the Administrative Law Judge. Specifical-
ly, we note:
1. Puleo's testimony of when he spoke to Danny
alternated between once, at 10 or 11 a.m.; "lots of
times"; 1:30 p.m. (an hour before Puleo's conversa-
tion with Maxwell); twice-the second time around
2:25 p.m. (outside Puleo's office); and "I don't know
what time that was." The Administrative Law Judge
apparently credited the version that the conversation
transpired at 10 or 11 a.m. inside Puleo's office. The
timing of the conversation or conversations (Puleo
gave three versions) is of major importance because,
if Danny spoke to Puleo only before lunch, in Puleo's
office, he could not have reported McMurry's
conversation about the Union which took place after
lunch. But of even greater significance, if this version
is credited, Danny could not have been pointing to
McMurry during the conversation since the office
has no windows. Yet, McMurry testified he saw
Danny point to him from outside Puleo's office and
Puleo admitted Danny pointed to McMurry during
the conversation. The Administrative Law Judge
made no effort to resolve these obvious discrepancies
in Puleo's testimony.
2. Maxwell testified that 2 weeks before the
discharge Puleo told him he had reprimanded
McMurry for being away from his machine. Puleo,
however, testified that he first observed McMurry
leaving his machine to talk to other employees on
October 22-a week before the discharge-but did
not even speak to McMurry about the incident,
much less reprimand him. Puleo testified that he had
seen McMurry away from his machine only on
October 22 and 29. He then testified that he again
observed McMurry away from his area "a day or 2
days later" after the October 22 incident, but, when
confronted with this inconsistency, Puleo retreated to
his earlier statement that he had observed McMurry
away from his machine only on October 22 and 29.
3. Puleo and Maxwell testified that a raise was
given the department employees in July 1976, while
McMurry testified that it was given in September
912
V & W CASTINGS
1976. The Administrative Law Judge credited the
version of Puleo and Maxwell that the raise was
given in July. However, not only did McMurry
testify that he received the raise in September 1976,
but Respondent, through the representation of its
counsel at the hearing and its statement of position, 2
admitted that McMurry received the raise on
September 13, 1976.3
4. Puleo and Maxwell testified that Respondent
tolerated absences in May through September
because in May Respondent was expanding from 120
to 140 employees. However, Maxwell later admitted
that the number of employees had grown only to 123
by December 1976.
5. Puleo testified that on the date of the discharge
he stopped Maxwell to point out that McMurry was
talking to another employee away from his work
area. Maxwell, however, testified that Puleo merely
told him that McMurry was away from his machine,
but Maxwell did not see McMurry away from his
work area. Apparently, the Administrative Law
Judge credited both versions.
6. Maxwell discharged McMurry without com-
pleting the customary personnel change authoriza-
tion form explaining the discharge and refused to
give McMurry a reason for his termination. Al-
though Maxwell testified that he refused to give
McMurry a reason in order to teach him a lesson for
failing to inform Respondent when he would be
absent, it is apparent that the incident immediately
leading to McMurry's discharge was his talking to
employees away from his work area, not his
unauthorized unexpected absences. Moreover, we
find it especially curious that Maxwell did not advise
McMurry of the reason for his discharge since
McMurry had never been warned about leaving his
post.
It is our longstanding policy to attach great weight
to the credibility findings of an Administrative Law
Judge, insofar as they are based on demeanor. 4
However, where a clear preponderance of all the
relevant evidence convinces us that such a resolution
is incorrect, we are impelled to substitute our own
credibility findings for those of the Administrative
2 In his Decision, the Administrative Law Judge specifically found
admissible Respondent's letter which was introduced at the hearing by the
General Counsel as Respondent's statement of position.
I The date is significant because the last repnmand Puleo admittedly
gave McM urry was about August 25 when he told him if he were going to be
absent to "at least call us."
Standard Dri Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d
362 (C.A. 3, 1951).
; W T Grunt Companr, 214 NLRB 698 (1974): Standard Dry Wall
Products. TItpra
U14 T Grant Compani. supra.
7223 NLRB 230(1976).
' As the court said in Shattuck Denn Minning Corporation (Iron King
Branchi) s . .RB. 362 F.2d 466. 470 (C.A. 9. 1966):
Law Judge.5 In such circumstances, the factor of the
demeanor is significantly diminished. 6 Here, the
Administrative Law Judge specifically stated that he
arrived at his credibility resolutions not only by
observing the demeanor of the witnesses at the
hearing, but also by applying the criteria enumerated
in Northridge Knitting Mills, Inc.7 There, we stated
that the ultimate choice between conflicting testimo-
ny rests not only on the demeanor of the witnesses,
but also on the weight of the evidence, established or
admitted facts, inherent probabilities, reasonable
inferences drawn from the record, and, in sum, all of
the other variant factors which the trier of fact must
consider in resolving credibility.
Applying those criteria to the facts here, we are of
the opinion, contrary to the Administrative Law
Judge, that Puleo and Maxwell were aware of
McMurry's protected activities on the day they
discharged him. In so finding, we rely not only on the
discrepancies in the testimony of Puleo and Maxwell,
but also particularly on the uncontradicted testimony
that McMurry distributed cards the day of his
discharge, Danny passed by him during a conversa-
tion about the Union, and Puleo admitted that
Danny pointed to McMurry while telling Puleo that
McMurry was "bothering" employees. On these
facts, the inference that Respondent knew of
McMurry's union activity is clearly warranted,
particularly in view of the unusual nature of the
discharge. s
Thus, the timing and circumstances of the dis-
charge, Maxwell's refusal to supply McMurry with a
reason for the termination or give him a termination
slip as was customary under Respondent's policy,
Respondent's failure ever to warn McMurry about
talking to employees away from his work area, the
condonation of McMurry's earlier absences (his only
reprimand was in August), and the inconsistent and
contradictory statements of Respondent's witnesses
convince us the discharge was pretextual. According-
ly, we find that McMurry was discriminatorily
discharged because of his union activities in violation
of Section 8 (aX3) of the Act.9
Actual motive, a state of mind, being the question. it is seldom that
direct evidence will be available that is not also self-serving In such
cases, the self-serving declaration is not conclusive: the trier of fact ma\
infer motive from the total circumstances proved. Otherwise no person
accused of unlawful motive who took the stand and testified to a lawful
motive could be brought to book. Nor is the trier of fact here the trial
examiner-required to be anymore naif than is a judge. If he finds that
the stated motive for a discharge is false. he certainly can infer that
there is another motive. More than that, he can infer that the motive is
one that the employer desires to conceal-an unlawful motive--at least
where, as in this case. the surrounding facts tend to reinforce that
inference.
9 Warren Chateau Hall, Inc. 214 NLRB 351 (1974).
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent discriminated
against Michael J. McMurry by discharging him
because of his union activities, we shall order that
Respondent cease and desist therefrom and take
certain actions intended to effectuate the policies of
the Act.
Accordingly, Respondent is ordered to offer
Michael J. McMurry immediate and full reinstate-
ment to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and to make him whole for any loss of
earnings and other benefits suffered because of
Respondent's discrimination against him. His loss of
earnings shall be computed as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), plus
interest as set forth in Isis Plumbing & Healing Co.,
138 NLRB 716 (1962), and Florida Steel Corporation,
231 NLRB 651 (1977).'0
CONCLUSIONS OF LAW
1. Respondent Warren L. Rose Castings, Inc.
d/b/a V & W Castings, at all times material has been
and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters Automotive Workers Local 495,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Michael J. McMurry because
of his union activities, Respondent has discriminated
and is discriminating against him in regard to hire
and tenure of employment, thereby discouraging
membership in a labor organization, within the
meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct Respondent has
interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of rights guaranteed them in Section 7
of the Act in violation of Section 8(a)(l) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, we issue the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Warren L. Rose Castings, Inc. d/b/a V & W
"' In accordance with our decision in Florida Steel Corporation, we shall
apply the current 7-percent rate for periods prior to August 25, 1977. in
which the "adjusted prime interest rate" as used by the Internal Revenue
Service in calculating interest on tax payments was at least 7 percent.
" In the event that this Order is enforced by a Judgment of a United
Castings, Bell Gardens, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in a labor organiza-
tion by discharging or otherwise discriminating in
regard to the hire and tenure of employment of any
employee or applicant for employment.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist Teamsters Automotive Work-
ers Local 495, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain
collectively with representatives of their own choos-
ing, and to engage in other concerted activities for
the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all such
activities except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary
to effectuate the purposes of the Act:
(a) Offer to Michael J. McMurry immediate and
full reinstatement to his former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges, and make him whole for
any loss of earnings and other benefits suffered by
him because of the discrimination against him, in the
manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its place of business in Bell Gardens,
California, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 21,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
914
V & W CASTINGS
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a represent-
ative that they choose
To refrain from any and all such activi-
ties.
WE WILL NOT discharge, or otherwise discrimi-
nate against, our employees because of their
activities on behalf of Teamsters Automotive
Workers Local 495, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them in Section
7 of the Act.
WE WILL offer to Michael J. McMurry immedi-
ate and full reinstatement to his former position
or, if that position no longer exists, to a
substantially equivalent position, without preju-
dice to his seniority and other rights and
privileges, and WE WILL make him whole for any
loss of earnings and other benefits suffered
because of the discrimination against him, with
interest.
WARREN L. ROSE
CASTINGS, INC. D/B/A
V & W CASTINGS
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge: The
charge in this case was filed on November 3, 1976, by
Michael J. McMurry. The complaint was issued on
December 28, 1976, on behalf of the General Counsel of
the National Labor Relations Board, herein called the
Board, by the Acting Regional Director for Region 21.
The General Counsel's complaint alleges that Warren L.
Rose Castings, Inc., d/b/a V & W Castings, herein called
the Respondent, has engaged in unfair labor practices
within the meaning of Section 8(aX I) and (3) of the
National Labor Relations Act, as amended, herein called
the Act. The Respondent filed an answer to the complaint
and denied the commission of the alleged unfair labor
practices.
The hearing was held before me on February 7, 1977, at
Los Angeles, California. Counsel for the General Counsel
made an oral argument on the record at the conclusion of
the taking of evidence at the hearing. Subsequently, she
filed a motion to correct transcript which pertains solely to
several proposed corrections in the transcription of her
closing argument. In the absence of any opposition, her
motion to correct the transcript is hereby granted. There
are numerous other errors in the transcript, but they can be
recognized as inconsequential errors which do not require a
detailed correction of the record.
The time for filing briefs was extended to March 29,
1977. Both counsel for the General Counsel and the
attorney for the Respondent submitted briefs which have
been read and duly considered.
Upon the entire record in this proceeding and based
upon my observation of the demeanor of the witnesses, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation engaged in
the business of aluminum casting with its principal place of
business located at 6032 Shull Avenue in Bell Gardens,
California.
In the course and conduct of its business operations, the
Respondent has annually sold goods valued in excess of
$50,000 directly to customers located outside the State of
California.
Upon the foregoing facts, I find that the Respondent has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It was admitted in the pleadings that Teamsters Automo-
tive Workers Local 495, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act. Accordingly, I find that fact to be
so.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings in this case
concerns the motivation of the Respondent in discharging
Michael J. McMurry on Friday, October 29, 1976.
The General Counsel contends that the Respondent
terminated McMurry because McMurry had engaged in
union activity on that date by distributing union authoriza-
tion cards to certain employees at the plant. Thus, the
915
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel argues that the Respondent thereby
violated Section 8(a)(1) and (3) of the Act.
The Respondent contends that McMurry was fired
because of excessive absences, excessive lateness, and for
being away from his work station during working hours.
A second issue involves the General Counsel's allegation
that the Respondent independently violated Section 8(aX)(1)
of the Act by forcibly attempting to obtain union
authorization cards from McMurry on October 29, 1976,
immediately after his termination. The Respondent denies
that the incident took place as described by McMurry but,
in any event, argues that there was no violation of the Act.
A third issue pertains to the admissibility of a letter from
the Respondent's attorney who set forth the employer's
statement of position to Region 21 of the Board during the
investigation of the unfair labor practice charge.
B. Foreman Puleo
Phillip Puleo had been employed by the Respondent for
about 14 years at the time of the hearing. Since May 1976,
Puleo had been the sand foundry foreman and also the
foreman of the core room and shell room department.
Puleo said that new management had taken over about I-
1/2 or 2 years ago, and he estimated that the number of
production employees had risen from a low of approxi-
mately 60 employees at that point in time to about 130
production employees.
There were about 25 employees in the core room during
the time that McMurry worked there. About five or six of
those employees worked in the core area where McMurry
was a core machine operator.
McMurry's machine was located approximately 20 or 25
feet from Puleo's office. However, Puleo pointed out that
there was no window in his office, so he could not see
McMurry from inside his office. Nevertheless, Puleo
estimated that he spent only 2 or 3 hours a day in his office.
He explained that the area where employees worked under
his supervision covered from 15,000 to 16,000 square feet.
The foregoing findings of fact are based upon the
testimony of Puleo whose testimony has been credited
throughout this proceeding. In many instances, the recol-
lections of the four witnesses who testified were not in
substantial conflict, and in some instances the testimony
was not contradicted. However, where there are conflicts
among the witnesses, I found the testimony given by Puleo
and Vice President Melvin F. Maxwell to be the more
reliable testimony and I have, therefore, credited their
versions. See Northridge Knitting Mills, Inc., 223 NLRB 230
(1976), for the criteria utilized in addition to observing the
demeanor of the witnesses at the hearing. Nevertheless, as
pointed out, some of the testimony was not contradicted,
and I have also made findings of fact based upon the
testimony given by McMurry and by an employee on
disability leave at the time of the hearing, John L. Smith.
The source for the findings of fact in each section will be
specified.
C. McMurry's Attempts To Obtain a Raise
McMurry began working for the Respondent on Thurs-
day, May 13, 1976. About the middle of June 1976,
McMurry approached Puleo and began the conversation
by telling Puleo that another employee, John Smith, was
earning 25 cents an hour more than McMurry. McMurry
said that Smith had received a 25-cent-an-hour raise, ana
McMdirry stated that he wanted a raise. Puleo testified: "I
told him that I would have to check his records because I
didn't hire him and didn't keep track." McMurry asserted
that Melvin F. Maxwell, vice president of the Respondent,
had promised him a raise after 30 days. Puleo testified: "At
that time he was having a lot of time off, and I told him
before I looked into a raise, he would have to show
improvement in his attendance." Puleo stated that leadman
Hallett was present during the conversation.
Within the hour, Puleo had checked the Company's
records and had found that it was not true that Smith had
received a 25-cent-an-hour raise, and Puleo so informed
McMurry. Puleo said that he thought that Smith was
standing next to the table where Puleo and McMurry were
talking.
Puleo told McMurry that he was trying to get a raise "for
all of you," but that he had to talk with Maxwell regarding
it. At the hearing, Puleo explained that his use of the phrase
"all of you" had reference to a raise for the whole core
room. Puleo said that about 15 days afterwards the
approximately 25 employees in the core room did, in fact,
receive a raise.
It was acknowledged by Puleo that McMurry was not
the only one whose attendance was of concern to him at
that time. He said that there were three employees who
were also taking time off from work about the same time.
He discussed McMurry's situation with the leadman about
3 days before the end of McMurry's initial 30-day period.
Puleo explained at the hearing: "Well, we had a lot of work
coming in, and we just needed a man. I was just hoping he
would straighten up."
The findings of fact in this section are based on Puleo's
testimony.
Maxwell confirmed that Puleo asked him for a raise for
the approximately 25 employees in his shop. He said that a
general raise was given of 15 to 20 cents for each person.
Maxwell said that McMurry received his raise at that time.
He said that Puleo told him that McMurry "had been off
quite a number of times." Maxwell examined McMurry's
record and formed the opinion that it was an inconsistent
record of absences.
Vice President Maxwell stated that he and Puleo
discussed McMurry on at least three occasions. The first
time was after McMurry had been employed for 30 days.
With regard to McMurry, Puleo gave the following report
to Maxwell: "He said he was absent and had some time off
and was late a couple of times, but there was nothing at
that particular time we could do because we needed the
body. We needed the man." Maxwell explained at the
hearing that absences had been tolerated to some extent
from May through September 1976 due to the large
turnover among the employees; the need to find skilled
workers and the need to train employees. While the record
shows that the total number of employees increased very
little during that particular 5-month period, the turnover
among employees would explain the number of new hires
to which Puleo testified in his department.
916
V & W CASTINGS
The findings of fact in the preceding paragraphs are
based on Maxwell's testimony.
McMurry gave a different version of his attempt to
obtain a wage increase. McMurry said that he spoke with
Maxwell regarding a raise about 6 weeks after he had been
hired. At first, he testified that he spoke to Maxwell
because he had heard from employee John Smith that
Smith had received a 25-cent-an-hour increase. McMurry
explained that he had known Smith before McMurry
began working for the Company, and at the time of his
employment he was hired by Maxwell at the same rate of
pay that Smith was receiving at the time. That rate was
$3.75 an hour. McMurry said that Maxwell promised him a
25-cent raise in 30 days.
Later in this testimony, McMurry stated that he spoke
with Maxwell before, rather than after, Smith told him
about Smith's receiving a 25-cent-an-hour raise. McMurry
testified with regard to his first conversation with Maxwell
regarding a raise:
I told him it was time for my raise. I said I wanted to
let him know early because of all the trouble John
Smith had been having and my raise was already a
couple of weeks overdue.
And John was still waiting for his raise, which was -
he should have got about the time I started.
He said he would get back to me.
A couple of days later, according to McMurry, he spoke
once again to Maxwell regarding a raise. McMurry
testified that he asked, "What about my raise?" to which
Maxwell replied, "Nothing."
McMurry said that he also spoke several times with
Puleo and leadman Shorty Hallett regarding a raise.
However, he said that he did not receive a raise until
September 1976 when he got 15 cents an hour increase.
That resulted from all five employees in the core depart-
ment asking Puleo for a raise and Puleo saying that he
would put their names on a list of people whom he would
recommend to Maxwell for a raise. Three or four days
later, McMurry said that he received a raise and was told
by Puleo that all had gotten a raise in pay.
For the reasons stated earlier, I have credited the
versions given by Puleo and Maxwell and, therefore, based
the findings on their versions.
D. McMurry's Tardiness and Absences
For a 6-week period of time between Monday, July 19,
1976, through Monday, August 16, 1976, McMurry was
away from work due to an injury covered by workmen's
compensation. After McMurry's return to work in August,
Puleo observed McMurry coming back to work from lunch
10 to 15 minutes late while everybody else was working.
Puleo stated: "I told him it would have to stop. He said,
well, I got things to do - he gave me no excuse
whatsoever."
McMurry was also absent from work for 3 consecutive
days. Those were Monday, August 23, Tuesday, August 24,
and Wednesday, August 25, 1976. According to Puleo,
McMurry did not call in so, upon McMurry's return, Puleo
told McMurry to "at least call us." McMurry told Puleo
that he had gone up north for a bike.
The findings of fact set forth above in this section are
based on the testimony of Puleo.
Maxwell recalled that about 2 weeks prior to McMurry's
termination Puleo informed him that Puleo had reprimand-
ed McMurry for being late in order to try to get McMurry
to work more frequently and to stop the discussions around
the shop. Maxwell said that Puleo told him that McMurry
was either off of the job or off of his machine, and that
Puleo could not continue to get production if a man was
not coming to work. Maxwell said he agreed.
The preceding findings are based on Maxwell's testimo-
ny.
John L. Smith began working for the Respondent in
April 1976 as a shell core machine operator. He has been
on disability status since October 18, 1976.
Smith recalled overhearing leadman Hallett state that
McMurry was doing good work. Smith said that he did not
hear leadman Hallett or Foreman Puleo reprimand
McMurry because of his absences or lateness. Smith
estimated that the size of the department was about 40 by
50 feet and that sometimes he operated a machine at the
other end of the department from where McMurry worked.
When Smith was going to be absent from work, either he
or his wife called into the company office and reported that
fact.
During the period of time about a month prior to
McMurry's injury at work and about a month after
McMurry returned to work, Smith gave McMurry a ride to
and from the plant. On several occasions when Smith went
to McMurry's residence in the morning, McMurry in-
formed Smith that he was sick. He said that McMurry
asked him to inform leadman Hallett of that fact. Smith
said that he did so. During his direct examination, Smith
said that this occurred about six, seven, or eight times. On
cross-examination, he was less certain, but gave seven or
eight times as his best recollection. Then he was confronted
during cross-examination with his pretrial affidavit in
which he had given the number as two occasions. That
affidavit had been given by Smith on January 17, 1977. He
then testified that it had occurred several times, or two or
three times, but he stated that he could not remember how
many times for certain.
In light of the foregoing, I conclude that his pretrial
affidavit contained the more accurate number of times.
Smith did recall one occasion when McMurry told him
the evening before that he would be away from work for a
couple of days in order to pick up his motorcycle.
Smith said that he had left his working area to speak to
other employees in the core department. He said that this
lasted for however long it was necessary to take care of the
business he was discussing. However, he said that he had
sometimes spoken to other employees during working time
concerning other than business matters. Smith testified that
he had not been warned concerning that. However, he did
not testify whether any supervisors were present or had
knowledge of his doing so.
McMurry denied that anyone at the Company had ever
talked with him regarding his unexcused absences or his
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tardiness. He did not remember anything being said
concerning his absences on August 23, 24, and 25, 1976.
He attributed his absences on Thursday, October 7,
Friday, October 8, and Monday, October 11, 1976, to his
picking up an engine for his motorcycle in San Luis
Obispo, California. He said that he had no telephone at
that time, but that he told employee Smith about being
absent.
As previously set forth, I have credited the testimony of
Puleo and Maxwell and based the findings of fact in this
section on their versions and, to the extent not in conflict,
also on the testimony of Smith.
E. The Events on Friday, October 22, 1976
On Friday, October 22, 1976, Puleo observed McMurry
on two occasions away from his machine and talking to
another employee. On both of those occasions, Puleo
checked with leadman Hallett who told him that McMurry
had a core in his machine and had walked away.
Puleo said that other core machine operators had left
their machines for 8 minutes, "but that's when there is no
core in it." Puleo also said that other employees can talk to
the person next to him, "but when you have a core
machine, you don't leave it and walk away."
Puleo did not overhear the conversation, but he observed
McMurry on one of those occasions standing about 6 or 7
feet from Puleo's office and talking to another employee
from 4 to 7 minutes. On the second occasion that day,
Puleo observed McMurry talking to still another employee
for 2 to 3 minutes about 100 feet away from McMurry's
machine in the core room.
The findings of fact in this section are based on Puleo's
testimony.
F. The Union Activities of McMurry
The union activities of McMurry began on Thursday,
October 28, 1976. After he left work at 2:30 p.m., McMurry
went to Ozzie's Restaurant in Pico Rivera, California,
where he met with a union organizer named Joe Hender-
son. Henderson gave union literature and union authoriza-
tion cards to McMurry and told him to get the cards signed
and return them to Henderson.
The next morning, Friday, October 29, 1976, McMurry
brought the union literature and union authorization cards
with him to the plant. His starting time was 7 a.m. He
punched in at the timeclock and he passed out some of the
cards. He had a break period which began at 8:55 a.m. and
lasted 25 minutes. He passed out more cards during his
breaktime. He received his weekly paycheck around II
a.m. Then he had a lunch period from 12 noon to 12:30
p.m. during which he also distributed the cards.
In addition, McMurry said that a couple of employees
came to him at his work station during working hours that
day and he talked with them.
McMurry also described a brief conversation, which
lasted I or 2 minutes at the most, after his lunch period.
McMurry did not know the name of the employee with
whom he spoke, but at the hearing he gave a brief physical
description of the person. McMurry related the following
account of his conversation with the employee:
I went to the bathroom, went outside the bathroom
to wash my hands and another employee came to wash
his hands; asked me some questions about the Union,
what would the union dues be.
I told him that I didn't know exactly, but I figured
the raise would more than cover them.
He asked me some more questions about union
benefits and he said he needed some more time to think
about it.
And I told him to tell your friends too.
According to McMurry, the leadman in the finishing
department, who was identified only by his first name as
Danny, came out of the bathroom and walked over to
where McMurry and the other person were talking. At first
McMurry said that Danny was 2 feet from McMurry when
he saw Danny. However, during cross-examination,
McMurry was confronted with his pretrial affidavit which
he had given on November 3, 1976. He acknowledged that
he said in his affidavit that Danny passed about 5 feet
away from him and the employee. During redirect
examination, he changed his estimate to from 2 to 5 feet.
About a half hour later, according to McMurry, he
looked up from his work and saw Danny talking to Puleo.
McMurry said that Danny was pointing in his direction at
the time and that Puleo looked in McMurry's direction.
About a minute or so later, McMurry said that Danny
walked past the area where McMurry was working.
The foregoing findings of fact are based on the testimony
given by McMurry.
G. The Events Preceding McMurry's Termination
During the morning of Friday, October 29, 1976, about
10 or 11 o'clock, Puleo and the leadman named Danny had
a conversation in Puleo's office. Puleo testified that Danny
pointed to McMurry and, "He told me he was bothering
people in the alley and bothering some guys in the core
department, talking to some of them." Puleo stated that
Danny did not tell him what McMurry was speaking
about.
That same day, around 2:20 p.m., Puleo and Maxwell
had just come from the foundry and were walking in the
main aisle when Puleo observed McMurry standing outside
Puleo's office and talking to another employee. Puleo
testified: "He was just standing there talking. I just told
Maxwell that is it, I have had it." Puleo said that McMurry
was doing the same thing that he had been doing right
along and that he suggested to Maxwell that they get rid of
him. Puleo testified that Maxwell told him, "If you don't
want to do it, I will do it."
Puleo denied that he ever saw McMurry passing out
union cards. He further denied knowing anything about
McMurry's union activities or hearing rumors regarding
them.
The foregoing findings of fact are based on the testimony
of Puleo.
Maxwell recalled that it was about 2 p.m. on October 29,
1976, when Puleo told him that McMurry was away from
his machine, not producing cores, and talking to other
people in the shop. Maxwell testified: "He told me he just
couldn't put up with it; he couldn't get production if this
918
V & W CASTINGS
continued; he had had enough." Maxweli's version is that
he told Puleo that Puleo was busy with his production
schedules, so Maxwell said that he would fire McMurry.
Maxwell had the bookkeeper prepare checks in the full
amount for McMurry, but. he did not have a termination
slip made at that time.
The foregoing is based on Maxwell's testimony.
H. The Termination of McMurry
Maxwell called Puleo that same afternoon and told him
to send McMurry to his office. Maxwell testified with
regard to his conversation with McMurry: "I told him he
was through; I said you are terminated; here's your
checks." Maxwell said that McMurry did not say anything
at that time, and instead, he walked out towards the back
of the shop. Maxwell asked McMurry where he was going.
McMurry responded that he was going back to the bench
to get his clothes. Maxwell told him that he would follow
him out.
Maxwell said: "He walked out to the bench, got his coat,
got a paper bag and went to the front of the building."
Maxwell denied that he touched either McMurry or the
paper bag. He also denied that he tried to reach for the
paper bag. Maxwell testified: "I don't know what he had in
the paper bag and I could care less."
When McMurry and Maxwell walked from McMurry's
station to the front of the building, McMurry asked why he
was being fired. Maxwell said: "I don't have to have a
reason to fire you."
His explanation at the hearing for not giving any reason
for the termination to McMurry was:
Sometimes you have to teach people lessons and I
thought maybe it would sink in. This man never called
in ever to tell us he was going to be late or not be there.
Why should I - I am giving him the same treatment he
gives me. He never told me when he was not going to be
there so I said I don't have to give you a reason.
Maxwell denied any awareness of any union activities in
the shop and asserted that the reasons for McMurry's
termination were his absenteeism and his being away from
his machine instead of being at his machine and producing
cores.
The findings of fact in this section are based upon the
testimony given by Maxwell.
McMurry gave the following account of his conversation
with Maxwell in Maxwell's office that afternoon:
He said, "This is your final check."
I said, "Why?"
He said, "You are being laid off."
I said, I asked why and he said, "You are just laid
off. I don't have to give you any damned reason at all."
McMurry said that he told Maxwell that he had to go
back and pick up his things in the working area, and that
Maxwell said that he would go with him. McMurry
described the incident as follows:
I went back, picked up my jacket with one hand and
a brown bag with the union literature with the other
and felt a pull of the bag.
I jerked the bag away and he told me to get off the
premises.
McMurry described the bag as "It was a regular lunch
sack, a small brown paper bag." He acknowledged that the
contents of the bag were not visible. McMurry did work
with tools at the plant, but he said that the tools are usually
put away when the employees start to clean up before
leaving work.
For the reasons given previously, I have credited
Maxwell's version and based the findings of fact on his
version.
I. Opinions of McMurry's Performance
In Puleo's opinion, McMurry was a good worker when
he was on the job. In his view, McMurry's production was
"very good" when he was operating his machine.
Although McMurry had 13 absences from work during
the time of his employment by the Respondent, Puleo
acknowledged that he had never given a written warning to
McMurry. He said that he had given some verbal warnings
and some written warnings to employees regarding their
absenteeism. He explained that in the period after
McMurry's termination, around December 1976, the
Company had a new set of rules and commenced
enforcement. Puleo also offered the explanation that.
during the period of McMurry's employment at the
Company, he had difficulty finding experienced personnel.
He estimated that there were 20 or 22 persons hired in his
department between the dates of McMurry's hire and his
termination.
The foregoing is based on Puleo's testimony.
Maxwell was also of the opinion that McMurry was a
good worker when McMurry was operating his machine.
Maxwell gave the following description of the coremaker's
job which McMurry performed:
. . . his job in the foundry was to make the inside
part of a casting, like the inside of an engine. That is all
core work.
Those have to be made in order to make the casting.
Then the production people have to take those cores
to make the casting.
Now the core maker does the inside core work like
the passage way in the head or block, and the molder
makes the shape and pours the metal into it.
So that was their function to make enough cores to
keep 120 people working, and a core maker has to stay
on his station.
The foregoing is based on Maxwell's testimony.
J. The Records of Other Employees
Four employees, other than McMurry, were terminated
by Puleo because of their absenteeism. No contention was
made by counsel for the General Counsel that the other
four employees were terminated for discriminatory rea-
sons.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adalph Espinoza, Jr., was terminated by Puleo on
August 27, 1976, because he was absent 17 times from
work, including the date of his termination. Espinoza
signed the Company's "Personnel Change Authorization"
form when he came in to pick up his paycheck on the
Monday following his termination. The form has spaces for
the employee's signature as well as the supervisor's
signature after the sentence: "I have reported all industrial
injuries to the Company and am not now disabled or in
need of treatment because of a job-connected accident."
Macedonio Benavides was terminated by Puleo on
September 6, 1976, for his absenteeism. His "Personnel
Change Authorization" form recites 12 absences from work
by Benavides, including the day of his termination. He also
signed the form when Benavides came in later to get his
paycheck.
Manuel Espinoza was terminated by Puleo on September
22, 1976, because of his absenteeism. His "Personnel
Change Authorization" form reveals eight absences by
Espinoza during his employment, including being absent
on the date of his termination. Puleo said that Espinoza
called in on that last day, but he gave no reason for being
absent. Espinoza also signed the form when he came in the
following Monday to receive his check.
All of the three employees referred to above were fired
by Puleo for absenteeism prior to the time that McMurry
was discharged. Another employee, Thomas Stenner, was
terminated by Puleo for absenteeism after McMurry's
discharge. Puleo fired Stenner on November 12, 1976.
Stenner's "Personnel Change Authorization" form lists
absences on four consecutive days, November 9 through
12, without calling his supervisor concerning the absences.
Stenner also signed the form when he came to the plant
after his termination.
Two other employees who have had numerous absences
from work at the Company had not been fired by Puleo at
the time of the hearing in this proceeding. One of the
employees was Mike Torres who had 17 absences of which
only 3 or 4 absences had been excused. Puleo explained
that Torres had alcohol problems as well as ulcers. Torres
had been given three written warnings including his final
warning the week before the hearing.
The other employee was Alfredo Hernandez who had 29
absences from work. Puleo explained that Hernandez had
been on sick leave or a leave of absence, but that since his
return had not taken off. The records concerning Hernan-
dez confirmed that after a series of days marked "ill"
ending on July 31, 1976, only one absence from work was
shown for September 20, 1976. In preparing a compilation
of absences from the employees' timecards for introduction
at the hearing, the marking on the timecard "ill" was
shown on the compilation and tallied as an absence by
counsel for General Counsel.
Puleo stated that it was customary to prepare a
"Personnel Change Authorization" form when an employ-
ee is to be discharged. In the cases of the four employees
fired by Puleo for absenteeism referred to above, each
employee was absent from work on the date of his
termination. Therefore, the employee signed the form
subsequently when he came to the plant to receive his
paycheck. However, employee Benjamin Velarde was
terminated by Puleo on September 17, 1976, because of
that employee's inability to follow the instructions of his
supervisor. A form was prepared for Velarde's termination,
but Velarde refused to sign the form. Puleo was unable to
specify why a "Personal Change Authorzation" form had
not been prepared for McMurry.
The foregoing findings of fact are based upon the
testimony given by Puleo and on documentary evidence.
K. The Statement of Position
As noted earlier, the unfair labor practice charge was
filed on November 3, 1976, with Region 21 of the Board.
On the same date, a form letter captioned "Notice of
Filing of Charge" was sent by the Regional Director for
Region 21 to the Respondent. That document was
introduced with the formal papers as General Counsel's
Exhibit I(b). Among other things, the Regional Director's
letter requested that the Company submit promptly a
complete written account of the facts and a statement of
the Company's position with respect to the allegations set
forth in the charge.
Thereafter, the attorney for the Respondent submitted a
letter dated December 14, 1976, to Region 21 which states
in pertinent part:
Following is the statement of position of the
employer, V & W Castings, in the above-referenced
matter.
Michael McMurry, started working for V & W
Castings on May 13, 1976, and was terminated October
29, 1976. The basic and sole reason for his termination
was his extensive absenteeism and tardiness record
during his five months of employment.
He was absent from work for more than two weeks
between July 19 and August 17 because of his claim
that he injured his foot. In addition to this absence,
McMurry was absent thirteen (13) other days without
any justifiable reason having been given to the
employer. As a matter of fact, with reference to those
thirteen (13) absences for a full working day, in most of
these situations McMurry did not call in on the day of
the absence to indicate he would not show up. In
addition to those unexcused absences and the extensive
record of absenteeisms, he was tardy on a number of
occasions.
McMurry's starting rate was $3.75 per hour which
was raised on September 13 to $3.90 per hour in
accordance with pre-employment agreement that he
would receive a nominal increase as soon as he
obtained some experience. Also, McMurry did not
appear to be interested in his work and spent consider-
able time during working hours talking to other
workers thus not performing his own functions but
interfering with the work of other employees. The
employer has no knowledge regarding the subject
matters discussed by McMurry with other employees.
The employer categorically denies that McMurry
was terminated because of his activities on behalf of
Teamsters Local #495. His discharge was related
solely and exclusively to his absenteeism and tardiness
record as well as his failure to apply himself to his job.
920
V & W CASTINGS
Should you have any further questions regarding this
matter, please contact me.
Counsel for the General Counsel contends that the
position taken by the Respondent in the foregoing letter is
different from the Respondent's defense presented at the
hearing. Therefore, the General Counsel argues, the
Respondent has shifted its defenses with regard to the
termination of McMurry and that change in defenses,
along with the other evidence, should give rise to a finding
that the Respondent's defense at the hearing was false and
a pretext to cover up the Respondent's discriminatory
motive.
The attorney for the Respondent, on the other hand,
argues that there is no inconsistency between the statement
of position submitted to the Regional Director in connec-
tion with the investigation of the unfair labor practice
charge and the defense presented at the hearing.
While the second paragraph of the letter speaks in terms
of "the basic and sole reason for his termination" being
McMurry's extensive absenteeism and tardiness record, the
next to last paragraph of the letter reiterates McMurry's
absenteeism, tardiness and failure to apply himself to his
job. The attorney for the Respondent argues, therefore,
that these factors set forth in the letter are consistent with
the Respondent's defense.
I find the Respondent's argument on this point to be
persuasive. I find that there has not been a shift or change
in the Respondent's defense to the 8(a)(3) allegation.
Nevertheless, the Respondent also argues a more
fundamental point, and that point is that such a statement
of position, voluntarily given during an investigation,
should not be admitted into evidence at a hearing. In his
brief the attorney for the Respondent urges that the letter
should be excluded. In summary, the grounds for exclusion
rest upon: (I) what the Respondent feels are matters of
public policy which would not be served, in the Respon-
dent's view, if attorneys ceased giving such statements to
Regional Offices to assist in the determination of whether
an unfair labor practice complaint should be issued; (2) by
restricting a Respondent's defense to the contents of such a
letter, the Respondent would be denied the right to
uncover and present evidence discovered at a later date; (3)
the letters can be compared to offers of settlement since
one purpose of the letters is to facilitate the reaching of
settlements; (4) the letters are comments of the Respon-
dent's attorney and cannot be used for impeachment of the
Respondent's witness; and (5) in the Respondent's view the
Board decisions which indicate that such statements of
position were accepted into evidence do not specifically
rule on the admissibility of such documents.
I have considered the arguments made by the attorney
for the Respondent and the arguments advanced by
counsel for the General Counsel on the question of whether
the document is properly admissible in evidence. I
conclude that the Board has ruled on the matter in its
decision in Steve Aloi Ford, Inc., 179 NLRB 229, fn. 2
(1969), which has been followed in subsequent cases.
Accordingly, I find that the letter was properly admissi-
, le in evidence, and I shall deny the Respondent's request
that the letter be excluded.
L. Conclusions
In N.LR.B. v. Ace Comb Company and Ace Bowling
Company, Division of Amerace Corporation, 342 F.2d 841,
847 (C.A. 8, 1965), the court held:
It has long been established that for the purpose of
determining whether or not a discharge is discriminato-
ry in an action such as this, it is necessary that the true,
underlying reason for the discharge be established.
That is, the fact that a lawful cause for discharge is
available is no defense where the employee is actually
discharged because of his Union activities. A fortiori, if
the discharge is actually motivated by a lawful reason,
the fact that the employee is engaged in Union
activities at the time will not tie the employer's hands
and prevent him from the exercise of his business
judgment to discharge an employee for cause. [Cita-
tions omitted.] It must be remembered that it is not the
purpose of the Act to give the Board any control
whatsoever over an employer's policies, including his
policies concerning tenure of employment, and that an
employer may hire and fire at will for any reason
whatsoever, or for no reason, so long as the motivation
is not violative of the Act. [Citations omitted.]
The timing of the Respondent's termination of McMurry
on the same day that McMurry first distributed union
authorization cards to certain employees at the plant is the
strongest element in the General Counsel's case.
Weighing against the inference which could be drawn
from the timing of the termination are two significant
factors: (I) the fact that the evidence does not establish
that the Respondent had knowledge of McMurry's union
activities prior to his termination, and (2) the fact that there
is not any evidence whatsoever of union animus on the part
of the Respondent, which might disclose a discriminatory
motive if the Respondent did have knowledge of McMur-
ry's union activities.
As the Board pointed out in Siltec Corporation, 217
NLRB 282 (1975):
Having alleged a violation of Section 8(a)(1) and (3)
of the Act in the Respondent's discharge of Brawthen,
the General Counsel had the burden of proving
employer knowledge of the union activity and union
animus as the motivation for the discharge. The
General Counsel failed to meet this burden. Indeed, the
Administrative Law Judge found, a finding which we
adopt, that evidence of union animus on the part of the
Respondent was "totally lacking."
Since there was no evidence of actual company knowl-
edge of McMurry's union activities on October 29, 1976, it
was appropriate to examine the surrounding circumstances
to ascertain whether there was a basis for inferring such
knowledge. Kaye-Smith Enterprises, 211 NLRB 1034
(1974). In the instant case, there is no contention made that
the leadman, Danny, was a supervisor within the meaning
of the Act but, more importantly, the evidence does not
establish that Danny overheard the subject matter of the
conversation outside the bathroom between McMurry and
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unidentified employee. I found credible Puleo's
testimony concerning his conversation with Danny regard-
ing McMurry and the denials of Puleo and Maxwell that
they had knowledge of McMurry's union activities. Thus,
although McMurry distributed union authorization cards
and union literature to certain employees on the premises
on October 29, 1976, 1 conclude that the evidence is lacking
to show that the Respondent knew of such activity.
McMurry's involvement in union activity at the plant did
not immunize him from being terminated for cause. Klate
Holt Company, 161 NLRB 1606 (1966); Golden Nugget,
Inc., 215 NLRB 50 (1974). His absences from work, his
tardiness, and his being away from his work station were
matters of concern to the Respondent and, in particular, to
his supervisor, Puleo. These were matters which were
mentioned to McMurry at various times, but on which
action was not taken until October 29, 1976. In The
Goodyear Tire & Rubber Company, 188 NLRB 563, 564
(1971), the Board observed: "A determination of discrimi-
natory motivation must necessarily be based on an
evaluation of all the circumstances surrounding the
conduct alleged to be discriminatory. In this regard the
record herein supports Respondent's contention that
during Hawkins' entire tenure as service area manager, his
performance left much to be desired." In the instant case,
the evidence shows that McMurry's attendance at work
also left much to be desired, in the Respondent's view,
during his brief tenure of employment at the Company.
The explanations offered by Puleo and Maxwell for not
taking action earlier are persuasive. In their view, McMur-
ry was a good worker when he was at work at his machine
and his production was very good. During the period in
question, they needed experienced personnel due to the
turnover among their employees.
As set forth earlier, the evidence shows that Puleo
discharged four other employees because of their absentee-
ism. Thus, his recommendation to discharge McMurry for
that reason and other reasons is consistent with the actions
which Puleo took with regard to the other employees.
Furthermore, Puleo convincingly explained why two other
employees with numerous absences had been retained.
In Henry Marx and Saul Greenburg, d/b/a Ray's Liquor
Store, 227 NLRB 1800, 1801 (1977), the Board stated:
In sum, a finding of illegal motivation in these
discharges requires an affirmative conclusion that one
of the reasons for the discharges was the employees'
union activity, or in Gorney's case his testimony under
the Act. That conclusion cannot be reached here as the
evidence falls far short of establishing a union-related
or statutory-related reason for the discharges.
The Board also noted in footnote 3 [at 1801] in that case
that "mere timing and the severity of the disciplinary
action do not necessarily lead to the conclusion that his
discharge was discriminatory."
In the instant case, while the timing is the strongest
factor in the General Counsel's case, I find that factor to be
outweighed: (1) by the fact that the evidence shows that the
Respondent did not have knowledge of McMurry's union
activities prior to his termination on October 29, 1976, and
(2) the fact that there is no evidence of any union animus
on the part of the Respondent.
With regard to the General Counsel's allegation that the
Respondent independently violated Section 8(a)(1) of the
Act by forcibly attempting to obtain union authorization
cards from McMurry, I conclude that the credited evidence
does not support that allegation. As noted above, I have
credited Maxwell's testimony that he did not attempt to
touch McMurry or the brown paper bag at his work station
following McMurry's termination.
It is undisputed that the contents of the bag were not
visible, and Maxwell denied having any knowledge of the
contents.
In these circumstances, I find the case relied upon by
counsel for the General Counsel, Capitol Cement Division of
Capitol Aggregates, Inc., 191 NLRB 419 (1971), to be
distinguishable.
After considering all of the foregoing, I conclude that a
preponderance of the evidence does not establish that the
Respondent has engaged in the unfair labor practices
alleged in the complaint.
Upon the basis of the findings of fact and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Warren L. Rose Castings, Inc., d/b/a V & W
Castings, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Teamsters Automotive Workers Local 495, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the complaint in this proceeding.
[Recommended Order for dismissal omitted from publi-
cation.]
922